EXHIBIT 10.4
DATED 1999
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TELEMONDE NETWORKS LIMITED (1)
EQUITEL COMMUNICATIONS LIMITED OR
TELEMONDE, INC. (2)
SERVICE AGREEMENT
for
THIS AGREEMENT is made this day of 1999
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BETWEEN:-
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(1) TELEMONDE NETWORKS LIMITED (Registered in England No. 3714188) whose
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registered office is at ▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
("the Company"); and
(2) ("the Executive")
NOW IT IS HEREBY AGREED as follows:-
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1 Interpretation
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1.1 The headings and marginal headings to the clauses are for
convenience only and have no legal effect.
1.2 Any reference in this Agreement to any Act or delegated legislation
includes any statutory modification or re-enactment of it or the provision
referred to.
1.3 In this Agreement 'the Board' means the Board of Directors of the
Company.
1.4 In this Agreement "Group Company" means any company which is a holding
company of the Company or a subsidiary undertaking of the Company or of any such
holding company (as such expressions are defined in section 736 Companies Act
1985).
2 Appointment and Duration
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2.1 The Company appoints the Executive and the Executive agrees to act
in the capacity set out in the schedule. The Executive accepts that the Company
may at its discretion require him to perform other duties or tasks not within
the scope of his normal duties and the Executive agrees to perform those duties
or undertake those tasks as if they were specifically required under this
Agreement.
2.2 The appointment shall commence or be deemed to have commenced on the
date set out in the schedule and shall continue (subject to earlier termination
as provided in this Agreement) for the period stipulated in the schedule and
from then and afterwards until terminated by either party giving to the other
in writing not less than the period of notice specified in the schedule such
notice expiring on or at any time after the end of the initial period if any.
2.3 The Executive warrants that by virtue of entering into this Agreement
or any other agreements or arrangements made or to be made between the Company
and him he will not be in breach of any express or implied terms of any
contract with or of any other obligation to any third party binding upon him.
2.4 The Company may from time to time appoint any other person or persons
to act jointly with the Executive in his appointment.
3 Duties of the Executive
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3.1 The Executive shall at all times during the period of this
Agreement:-
3.1.1 devote such time, attention and ability to the duties of his
appointment as agreed with the Board;
3.1.2 work such hours as are necessary for the proper performance of his
duties. For the purposes of the Working Time Regulations 1998 the parties
acknowledge that the Executive has autonomous decision-taking powers within the
meaning of regulation 20 of the said Regulations;
3.1.3 faithfully and diligently perform those duties and exercise such
powers consistent with them which are from time to time assigned to or vested in
him;
3.1.4 obey all lawful and reasonable directions of the Board;
3.1.5 use his best endeavours to promote the interests of the Company
and its Group Companies;
3.1.6 keep the Board promptly and fully informed (in writing if so
requested) of his conduct of the business or affairs of the Company and provide
such explanations as the Board may require;
3.1.7 not at any time make any untrue or misleading statement relating
to the Company.
4 Place of Work
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4.1 The Executive shall perform his duties at the Company's principal
place of business or such other place of business as specified in the schedule
and/or such other place of business of the Company as the Company requires
whether inside or outside the United Kingdom but the Company shall not without
his prior consent require him to go to or reside anywhere outside the United
Kingdom except for occasional visits in the ordinary course of his duties.
5 Pay
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5.1 During his appointment the Company shall pay to the Executive:
5.1.1 a basic salary at the rate per year as set out in the schedule which
shall accrue day-to-day and be payable by equal monthly instalments in arrears
on or about the 28th day of each month. The salary shall be deemed to include
any fees receivable by the Executive as a director of the Company or of any
other company or unincorporated body in which he holds office as nominee or
representative of the Company; and
5.1.2 a bonus as the Board shall in its reasonable determination decide
payable in respect of each financial period of the Company beginning on or after
1st January 2000 or later (subject to any payment on account) within 21 days
after the adoption of the accounts for that financial period at the Annual
General Meeting.
5.2 The Executive's basic salary shall be reviewed by the Board within one
month of the date set out in the schedule in each year and the rate of basic
salary shall be increased by the Company with effect from the date set out in
the schedule in each year by such amount (if any) as the Board shall in its
absolute discretion determine with no obligation to increase.
5.3 Notwithstanding the provisions of sub-clause 5.2 the Company shall not
be required to increase the Executive's salary if and to the extent only that
the increased payment would be unlawful under the provisions of any legislation
then in force during his appointment or if the increased payment would not be an
allowable cost for the purpose of increasing prices under the provisions of any
legislation controlling prices or price increases.
6 Pension
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6.1 There is no pension scheme applicable to the Executive's employment
under this Agreement.
7 Health Insurance
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7.1 The Executive shall be entitled when such scheme is set up to
participate in it at the Company's expense for himself, his spouse and dependant
children in the Company's private medical expenses insurance scheme, subject
always to the rules of such schemes.
7.2 The Company shall provide the Executive with Permanent Health
Insurance and Incapacity Benefit Insurance of a nature commensurate with his
compensation at any time within 60 days of the signing of this agreement.
7.3 The Company shall provide the Executive with Death in Service Benefit
payable to the family of the Executive equal to twice the level of compensation
being received, such levels to be reassessed on an annual basis on the
anniversary of this contract.
7.4 The Company shall have no liability or responsibility with respect to
clauses 7.1, 7.2 and 7.3 if underwriters refuse to underwrite the required
insurance policies.
8 Car
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8.1 The Executive shall not be entitled to a car or any motor vehicle
expenses under this Agreement.
9 Expenses
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9.1 The Company shall reimburse to the Executive on a monthly basis all
travelling, hotel, entertainment and other expenses reasonably incurred by him
in the proper performance of his duties subject to his compliance with the
Company's then current guidelines, if any, relating to expenses and the
production of such vouchers or other evidence of actual payment of the expenses
as the Company may reasonably require.
9.2 Where the Company issues a company sponsored credit or charge card to
the Executive he shall use such card only for expenses reimbursable under clause
9.1
above, and shall return it to the Company on demand and immediately on the
termination of his employment.
10 Holiday
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10.1 In addition to public holidays the Executive is entitled to such
number of working days paid holiday in each year as set out the schedule to be
taken at such time or times as are agreed with the Board. The Executive shall
not without the consent of the Board carry forward any unused part of his
holiday entitlement to a subsequent year.
10.2 For the year during which his appointment commences or terminates, the
Executive is entitled to 2 working days holiday for each complete month of his
employment by the Company during that year. On the termination of his
appointment for whatever reason, the Executive shall either be entitled to pay
in lieu of outstanding holiday entitlement or be required to repay to the
Company any salary received for holiday taken in excess of his actual
entitlement. The basis for payment and repayment shall be 1/253 of the
Executive's annual basic salary for each day.
10.3 The Company reserves the right, at its absolute discretion, to require
the Executive to take any outstanding holiday during any notice period or to
make payment in lieu thereof.
11 Incapacity
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11.1 If the Executive shall be prevented by illness (including mental
disorder) injury or other incapacity from properly performing his duties
hereunder he shall report this fact forthwith to the Company Secretary's office
and if the Executive is so prevented for seven or more consecutive days he shall
provide a medical practitioner's statement on the eighth day and weekly
thereafter so that the whole period of incapacity is certified by such
statements. Immediately following his return to work after a period of absence
due to incapacity the Executive shall complete a Self-Certification form
available from the Company Secretary's office detailing the reason for his
absence.
11.2 If the Executive shall be absent from his duties hereunder due to
illness (including mental disorder) accident or other incapacity duly certified
in accordance with the provisions of sub-clause 11.1 he shall be paid his full
remuneration hereunder (including bonus and commission) for up to the number of
days absence specified in the schedule in any period of 12 consecutive months
and thereafter such remuneration, if any, as the Board shall determine from time
to time provided that such remuneration shall be inclusive of any Statutory Sick
Pay to which the Executive is entitled under the provisions of the Social
Security and Housing Benefits ▇▇▇ ▇▇▇▇ and any social Security Sickness Benefit
or other benefits recoverable by the Executive (whether or not recovered) may be
deducted there from.
11.3 For Statutory Sick Pay purposes the Executive's qualifying days
shall be his normal working days.
11.4 At any time during the period of his appointment, the Executive shall
at the request and expense of the Company permit himself to be examined by a
registered medical practitioner to be selected by the Company and shall
authorise such medical practitioner to disclose to and discuss with the
Company's medical adviser the results
of such examination and any matters which arise from it in order that the
Company's medical adviser can notify the Company of any matters which, in his
opinion, might hinder or prevent the Executive (if during a period of
incapacity) from returning to work for any period or (in other circumstances)
from properly performing any duties of his appointment at any time.
12 Obligations during Employment
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12.1 The Executive shall promptly disclose to the Company all copyright
works or designs originated, conceived, written or made by him alone or with
others (except only those works originated, conceived, written or made by him
wholly outside his normal working hours which are wholly unconnected with his
appointment) and shall hold them in trust for the Company until such rights
shall be fully and absolutely vested in the Company.
12.2 The Executive hereby assigns to the Company by way of future
assignment all copyright, design right and other proprietary rights (if any)
for the full terms thereof throughout the World in respect of all copyright
works and designs originated, conceived, written or made by the Executive
(except only those works or designs originated, written or made by the Executive
wholly outside his normal working hours which are wholly unconnected with his
appointment) during the period of his appointment by the Company.
12.3 The Executive hereby irrevocably and unconditionally waives in favour
of the Company any and all moral rights conferred on him by Chapter IV of Part I
of the Copyright Designs and Patents ▇▇▇ ▇▇▇▇ for any work in which copyright or
design right is vested in the Company whether by clause 12.2 or otherwise.
12.4 The Executive shall, at the request and expense of the Company, do all
things necessary or desirable to substantiate the rights of the Company under
clauses 12.2 and 12.3.
13 Termination of Agreement
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13.1 Automatic Termination
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This agreement shall automatically terminate:
13.1.1 on the death of the Executive; or
13.1.2 on the Executive reaching his 65th birthday; or
13.1.3 if he resigns his office; or
13.1.4 if the office of director of the Company held by the Executive is
vacated pursuant to the Company's Articles of Association save if the vacation
shall be caused by illness (including mental disorder) or injury; or
13.1.5 if the Executive becomes prohibited by law from being a director.
13.2 Suspension
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In order to investigate a complaint against the Executive of misconduct the
Company is entitled to suspend the Executive on full pay for so long as may be
necessary to carry out a proper investigation and hold a disciplinary hearing.
13.3 Immediate Dismissal
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The Company may by notice terminate this Agreement with immediate
effect if the Executive:-
13.3.1 commits any act of gross misconduct or repeats or continues (after
written warning) any other material breach of any of his obligations to the
Company whether under this Agreement or otherwise); or
13.3.2 is guilty of any conduct which in the reasonable opinion of the
Board brings the Company or any Group Company into serious disrepute; or
13.3.3 is convicted of any criminal offence punishable with six months or
more imprisonment (excluding any minor offence under road traffic legislation in
the United Kingdom or elsewhere for which he his not sentenced to any term of
imprisonment whether immediate or suspended); or
13.3.4 commits any act of dishonesty relating to the Company, any of its or
their employees or otherwise; or
13.3.5 becomes bankrupt or makes any arrangement or composition with his
creditors generally; or
13.3.6 becomes of unsound mind or a patient for the purpose of any statute
relating to mental health; or
13.3.7 the Executive is convicted of any serious offence under the Criminal
Justice ▇▇▇ ▇▇▇▇ or under any other present or future statutory enactment or
regulation relating to insider dealing.
13.4 Dismissal on Short Notice
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The Company may terminate this Agreement as follows notwithstanding clause 11.2
by not less than 3 months' prior notice given at any time while the Executive is
incapacitated by ill-health or accident from performing his duties under this
agreement and has been so incapacitated for a period or periods aggregating six
months in the preceding 12 months PROVIDED THAT the Company shall withdraw any
such notice if during the currency of the notice the Executive returns to full
time duties and provides a medical practitioner's certificate satisfactory to
the Board to the effect that he has fully recovered his health and that no
recurrence of his illness or incapacity can reasonably be anticipated.
13.5 Effect of Dismissal
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The lawful termination of the Executive's employment hereunder for whatsoever
reason shall not affect those terms of this Agreement which are expressed to
have effect after such termination and shall be without prejudice to any accrued
rights or remedies of the parties.
13.6 On the termination of the Executive's employment, or at any other
time in accordance with instructions given to him by the Board, the Executive
will immediately return to the Company all equipment, correspondence, records,
specifications, software, models, notes, reports and other documents and any
copies thereof and any other property belonging to the Company (including but
not limited to the Company car keys, credit cards, keys and passes) which are in
the Executive's possession or under his control.
13.7 Pay in Lieu
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On either party serving notice for any reason to terminate this Agreement or at
any time thereafter during the currency of such notice the Company shall be
entitled to pay to the Executive his basic salary (at the rate then payable
under clause 5) for the unexpired portion of the duration of his appointment or
entitlement to notice as may be the case.
13.8 After notice of termination has been given by either party or if the
Executive seeks to resign without notice or by giving shorter notice than is
required in the schedule, provided that the Company continues to pay the
Executive his basic salary, and to provide all contractual benefits until his
employment terminates in accordance with the terms of this Agreement, the
Company has absolute discretion for all of the notice period to:
13.8.1 exclude the Executive from such of the premises of the Company
and/or Group Company as the Board may direct;
13.8.2 instruct him not to communicate with suppliers, customers, employees,
agents or representatives of the Company or Group Company.
13.9 Should the Company exercise its discretion in accordance with Clause
13.8, the Restricted Period (as defined in Clause 16.1.2) shall be reduced by
that amount of the notice period in respect of which the Company has exercised
its discretion pursuant to the provisions of Clause 13.8.
13.10 Miscellaneous
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On the termination of this Agreement for whatever reason, the Executive shall at
the request of the Company resign (without prejudice to any claims which the
Executive may have against any company arising out of this Agreement or its
termination) from all and any offices which he may hold as a director of the
Company and from all other appointments or offices which he holds as nominee or
representative of the Company and if he should fail to do so within seven days
the Company is hereby irrevocably authorised to appoint some person in his name
and on his behalf to sign any documents or do any things necessary or requisite
to effect such resignation(s).
14 Confidential Information
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14.1 The Executive shall not, either during the continuance of his
employment (except so far as may be necessary in the performance of his duties)
or after its termination without the prior consent in writing of the Chairman of
the Board or except as required by law, disclose to any person or entity or use
except for the benefit of the Company or any Group Company, and use his best
endeavours to prevent the disclosure of any confidential information concerning
the business, finances, transactions or affairs of any Group Company or those of
its customers, agents clients or suppliers which has or may come to his
knowledge during the course of his employment with the Company.
14.2 For the purpose of this clause "confidential information" shall mean
all information, including but not limited to, information which relates to
business plans, pricing policies, rebates and discounts, customer details,
contracts, forecasts, budgets, accounts and surveys, which is identified or
treated by the Company as confidential or which by reason of its character or
the circumstances or manner of its disclosure is evidently of such a nature.
14.3 The restrictions contained in this Clause shall cease to apply to
information which may become available to the public generally other than
through the default of the Executive.
15 Other Business Interests
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The Executive shall not during the continuance of his employment with the
Company without the prior consent in writing of the Chairman of the Board accept
any other employment or be concerned or interested directly or indirectly in any
other business. Nothing in this clause shall prevent the Executive from holding
or being beneficially interested in shares or securities quoted on any
recognised investment exchange provided that he neither holds nor is
beneficially interested in more than 5% of the shares or securities in any
entity and provided further that such entity is not a competitor of the Company,
when the Executive is specifically prohibited from any interest whatsoever in
such a competitor.
16 Post Termination Covenants
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16.1 For the purpose of this clause:-
16.1.1 All references to "the Company" shall be construed to mean the
Company and any Group Company with which the Executive has been actively
concerned during the course of his employment hereunder;
16.1.2 The "Restricted Period" shall mean the period as specified in the
schedule starting from the date of the termination of the Executive's
employment;
16.1.3 The "Restricted Business" shall mean a business involving the
sale or supply of goods or services which are the same as or substantially
similar to any goods or services supplied by the Company, being goods or
services with which the Executive has been concerned or involved to any material
extent at any time during the period of 12 months preceding the termination of
his
employment hereunder and/or which the Company shall have decided to supply in
the immediate or foreseeable future and in the discussions for which the
Executive had been involved or in relation to which the Executive has
confidential information.
16.2 Except with the prior written consent of the Chairman of the Board,
the Executive shall not during the Restricted Period be engaged or interested in
or concerned with (in any capacity whatsoever and whether on his own account or
in conjunction with any other party) any person, firm, company or other entity
carrying on the Restricted Business in a radius of 50 miles from any factory or
other place of business of the Company at which either the Executive has worked
or in the business of which the Executive has been involved to a significant
degree during the 12 months prior to termination. Nothing in this clause shall
prevent the Executive from holding or being beneficially interested in shares or
securities quoted on any recognised investment exchange provided that he neither
holds nor is beneficially interested in more than 5% of the shares or securities
in any entity and provided further that such entity is not a competitor of the
Company.
16.3 Except with the prior written consent of the Chairman of the Board,
the Executive shall not, in competition to the Company during the Restricted
Period (in any capacity whatsoever and whether on his own account or in
conjunction with any other party) canvass or solicit or accept orders or
facilitate the canvassing, solicitation or acceptance of orders in respect of
Restricted Business from any person, firm, company or other entity who or which
at the date of termination of the Executive's employment hereunder is or at any
time during the period of 12 months prior thereto was a customer or client of
the Company and with whom he had material dealings at any time during the period
of 12 months prior to the termination of his employment hereunder.
16.4 Except with the prior written consent of the Chairman of the Board,
the Executive shall not, during the Restricted Period (in any capacity
whatsoever and whether on his own account or in conjunction with any other
party) employ or endeavour to entice away from the Company any person who at the
date of termination of the Executive's employment hereunder was employed or
engaged under a contract for services (in either case in a managerial,
technical, or sales position or any other staff position) by the Company and the
Executive shall not discourage any such restricted person from continuing to be
employed by the Company or supplying services to it.
16.5 The Executive hereby acknowledges and agrees that the covenants
contained in this clause are separate, severable and enforceable and that,
having obtained professional advice, the restrictions contained in such
covenants are fair and reasonable in the context of this Agreement. The parties
acknowledge, however, that such restrictions are liable to be rendered invalid
by changing circumstances or other unforeseen reasons and accordingly if any one
or more of the restrictions contained in this clause shall either individually
or together be adjudged, for whatever reason, to go beyond that which is
reasonable in all the circumstances for the protection of the legitimate
interests of the Company but would be adjudged reasonable if any particular
restriction or restrictions were deleted or limited in any matter (including,
without prejudice to the generality of the foregoing, any reduction in duration
or geographical area), the said restrictions shall apply with such deletions or
limitations.
16.6 If at any time after today's date for whatever reason the Company
shall consider it to be in its best interests, it shall be entitled, at its
discretion, by notice in writing to the Executive, to delete or limit in any
manner any of the restrictions contained in this clause 16 and in such event
such restrictions shall apply with such deletions or limitations as if they had
been agreed at the date of this agreement.
16.7 The Executive hereby acknowledges and agrees that upon the termination
of his employment hereunder he shall be obliged to draw the provisions of this
clause 16 to the attention of any third party who may at any time either before
or after the date of termination of such employment offer employment to him.
17 Share Transfers
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17.1 If the Executive shall be a Bad Leaver (as defined in clause 17.2
below) all rights which the Executive has under any share options or share
option schemes in respect of any shares or other interests in the Company or any
Group Company shall, with effect from the date notice of termination of
employment is served on or by the Executive under clause 2.2 or the date of
termination of employment if later, be cancelled without claim for compensation
by either party and any option exercised but not completed shall at the date of
such notice be deemed to be cancelled by mutual agreement unless both the
Company and the Executive otherwise agree.
17.2 For the purposes of this clause 17 the Executive is a Bad Leaver if
his employment is terminated:-
17.2.1 by the Company in circumstances where that termination is fair
(within the meaning of Section 98 of the Employment Rights Act 1998) other than
by reason of redundancy; or
17.2.2 by the Executive during the Initial Period other than by mutual
agreement between the Executive and the Company.
17.3 For the purposes of this clause 17 "the Company" shall include any
Group Company to whom the Executive has agreed in writing to transfer his
employment
18 Miscellaneous
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18.1 Statutory Particulars
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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.
18.2 Prior Agreements
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This Agreement sets out the entire agreement and understanding of the parties
and is in substitution for any previous contracts of employment or for services
between the Company or any of its Group Companies and the Executive (which shall
be deemed to have been terminated by mutual consent).
18.3 Proper Law
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The validity construction and performance of this Agreement shall be governed by
English law.
18.4 Acceptance of Jurisdiction
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All disputes claims or proceedings between the parties relating to the validity
construction or performance of this agreement shall 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.
18.5 Notices
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Any notice to be given by a party under this Agreement must be in writing and
must be given by delivery at or sending post or other faster postal service, in
to the last known postal address or relevant telecommunications number of the
other party. To prove the giving of a notice it shall be sufficient to show it
was despatched. A notice shall have effect from the sooner of its actual or
deemed receipt by the addressee.
IN WITNESS whereof the hands of the parties or their duly authorised
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representatives the day and year first above written
No Contracting-Out Certificate pursuant to the provisions of the Social Security
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ is held by the Company in respect of the Executive's
employment.
The Executive is subject to the Company's Disciplinary Rules and Disciplinary
Procedures copies of which have been given to the Executive.
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
Board.
AS WITNESS this agreement is executed and delivered by the parties or their duly
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authorised representatives the day and year first above written:
Signed by a duly authorised representative of
TELEMONDE NETWORKS LIMITED
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in the presence of:.............................................................
Signature..............................
Name...................................
Address................................
.......................................
Occupation.............................
Signed by in
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the presence of.................................................................
Signature..............................
Name...................................
Address................................
.......................................
Occupation.............................
