EXHIBIT 10.8
DATED 2002
FS2 LIMITED (1)
WORLD DISTRIBUTION CONSULTANTS LIMITED (2)
▇▇▇▇▇ ▇▇▇▇▇ (3)
THIS AGREEMENT is dated ___________________________ 2002
BETWEEN
(1) FS2 LIMITED (Company Number 04102584) whose registered office is situated
at ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ("the Company"); and
(2) WORLD DISTRIBUTION CONSULTANTS LIMITED (Company Number 2319311) whose
registered office is at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ("the
Consultant")
(3) ▇▇▇▇▇ ▇▇▇▇▇ of [ ] ("PS")
NOW IT IS HEREBY AGREED as follows:
1. Definitions
1.1 In this Agreement the following definitions apply unless the context
requires otherwise:
"the Appointment" means the appointment of the
Consultant on the terms of this
Agreement
"the Board" means the board of directors of the
Company from time to time
"the Confidential Information" has the meaning ascribed in Clause 8
"Subsidiary and holding company" shall have the meaning ascribed to
them by the Companies ▇▇▇ ▇▇▇▇
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2. Appointment and Term
2.1 The Company hereby appoints the Consultant and the Consultant hereby agrees
to act as Sales and Marketing Director and the Consultant hereby agrees to
provide the consulting services through PS
2.2 The Appointment shall commence on 1 January 2002 (the "Commencement Date")
and shall continue for a minimum period of 15 months (the "Initial Period")
The Appointment may be terminated by the Company or the Consultant giving
to the other not less than three calendar months notice such notice to
expire at any time after the Initial Period
2.3 The Consultant warrants that in entering into this Agreement and performing
its obligations under it they will not be in breach of any terms or
obligations under any further appointment or employment
2.4 At all times the Consultant shall provide the services of PS who shall at
all times remain an employee of the Consultant who shall ensure that this
Appointment is undertaken by PS
3. Scope of the Appointment
3.1 The Consultant shall be responsible for the duties and obligations referred
to in Schedule 1 to this Agreement
3.2 The Consultant shall be required to devote such proportion of the time and
attention of PS to the duties of its position (as the same is described in
clause 3.1) as may be necessary for the fulfilment of its obligations
3.3 During the continuation of the Appointment neither the Consultant nor PS
shall not without the prior written consent of the Board pledge the credit
of the Company
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4. Payment
4.1 Subject to compliance by the Consultant with its obligations under this
Agreement the Consultant shall be paid the sum of $5,000 per month for the
months of January February and March 2002 and US$12,000 during each of the
remaining months of the Initial Period
4.2 In addition to the payments specified in clause 4.1, the Company shall
reimburse to the Consultant and PS all reasonable expenses for travel,
subsistence, office or other out-of-pocket expenses properly incurred by
the Consultant and PS wholly in pursuance of their obligations under this
Agreement
4.3 All such payments due the to Consultant shall be paid upon completion of
each months activities and within seven (7) days of presentation of the
Consultant's invoice
4.4 Any payments to be made to the Consultant after the Initial Period will be
negotiated by the Consultant and the Board
4.5 All payments due to the Consultant under the terms of this Clause are
exclusive of any VAT or other tax that may be applicable to such payments
4.6 All payments due to the Consultant are conditional upon the Consultant
providing a monthly report to the Board in terms to be agreed and notified
to the Consultant from time to time
5. Skill and Care
The Consultant and PS shall carry out the terms of the Appointment and
perform their duties and obligations with reasonable skill and care and to
the best of their ability
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6. Tax Status
6.1 It is the intention of the parties that the Consultant shall assume the
status of a self-employed person and shall not be entitled to any pension
bonus or other fringe benefits from the Company and that he shall not be
liable to tax under Schedule E Income and Corporation Taxes 1988
6.2 The Consultant shall be solely responsible for the full payment of all
Income Tax assessments and National Insurance or similar contributions or
liabilities arising in consequence of this Agreement or otherwise
6.3 If for any reason the Company pays any Income Tax National Insurance or
similar contributions on behalf of the Consultant the Company is entitled
to demand and the Consultant shall give a full and immediate indemnity of
respect of all such payments made
7. Termination
7.1 Notwithstanding the provisions of Clause 2.2 the Appointment shall be
subject to termination by the Company by notice in writing at any time if
the Consultant or PS shall have: -
7.1.1 committed any serious breach of their obligations or an act
of gross misconduct serious negligence or serious default; or
7.1.2 (after written warning) repeated or continued any breach of their
obligations; or
7.1.3 been (in the reasonable opinion of the Board) guilty of conduct
tending to bring either of them or the Company into disrepute
including (without limitation) by knowingly making any untrue
or misleading statement in relation to the Company; or
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7.1.4 been convicted of any criminal offence (excluding an offence
under Road Traffic legislation in the United Kingdom or
elsewhere for which no sentence of imprisonment (immediate or
suspended) has been imposed); or
7.1.5 committed any act of dishonesty whether relating to the Company;
or
7.1.6 suffered or taken any proceedings towards a CVA or
arrangement a bankruptcy order or interim order with its
creditors being made against them or shall have taken any
formal steps towards entry into any compromise or arrangement
with their creditors generally or with a majority in number
or value of them; or
7.1.7 in the case of PS been subject of any disqualification order
made under the provisions of the Company Directors
Disqualification ▇▇▇ ▇▇▇▇
7.1.8 in the reasonable opinion of the Board failed to perform the
duties obligations and responsibilities referred to in this
Agreement pursuant to the Appointment
7.2 The Consultant hereby expressly agrees that the Company may make such
deductions from any payments due on the termination of or during the
Consultants Appointment as may be necessary to reimburse the Company
against any liability of or incurred by the Consultant to the Company
8. Confidential Information
8.1 Given the nature of the work undertaken by the Company from time to time
and the involvement which the Consultant and PS have and will continue to
be given in all aspects of the business of the Company, the Consultant and
PS will have access to information, much of which may be confidential and
the disclosure of which could be extremely damaging to the business of the
Company. In this Agreement, "Confidential Information" means:-
8.1.1 information relating to the businesses, finances, dealings,
transactions and affairs of the Company for the time being
confidential to the Company;
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8.1.2 trade secrets (including, without limitation, price and cost
information, discount structures, sales statistics, business
plans and programs, business opportunities, expansion plans,
marketing surveys, research and development projects, formulae,
inventions, patent applications and registrations, designs,
discoveries, know-how, methods, processes, techniques, other
technical data, business forms and operating procedures, policies
and practices) relating to the business of the Company and which
is for the time being confidential to the Company;
8.1.3 the names, addresses and contact details of customers or
potential customers clients or potential clients or suppliers or
potential suppliers of the Company (whether or not recorded in
writing or on computer disk or tape);
8.1.4 analyses made, or views taken, by the Company in respect of the
businesses, finances, dealings, transactions and affairs of the
Company, any customer or potential customer client or potential
client or any supplier or potential supplier of the Company or
any other third party; and
8.1.5 information in respect of which the Company is bound by an
obligation of confidentiality to a third party.
In order to protect the confidentiality of such information, and without
prejudice to every other duty which the Consultant and PS have to keep
secret all information given to them or gained in confidence, the
Consultant and PS agree as provided in this Clause 8.
8.2 The Consultant and PS shall not, except in the proper performance of their
duties under this Agreement, either during the Appointment or at any time
after the termination of the Appointment (howsoever caused), without the
prior written consent of the Board, use for their own benefit or for the
benefit of any other person, company or other undertaking (other than the
Company) or, except as required by law, a court or tribunal of competent
jurisdiction or any applicable regulatory or statutory authority or body,
directly or indirectly divulge or disclose to any person (other than any
person employed by the Company (including, for the avoidance of doubt, any
professional or other adviser appointed by the Company) whose province it
is to know the same) any Confidential Information which may come to his
knowledge during the Appointment or previously or otherwise.
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8.3 During the Appointment, the Consultant and PS shall use their best
endeavours to prevent the publication, divulgence or disclosure by third
parties of any Confidential Information.
8.4 The restrictions contained in this Clause 8 shall cease to apply to any
Confidential Information which may (otherwise than through the default of
the Consultant or PS) become available to, or within the knowledge of, the
public generally.
9. Intellectual Property
9.1 The Consultant and PS shall forthwith communicate to the Company in
confidence all Intellectual Property which either the Consultant or PS may
make or originate, either solely or jointly with another or others, during
the Appointment. For the purpose of this Clause 9, "Intellectual Property"
means (whether capable of being patented, registered or not):-
9.1.1 every invention, discovery, design, trade ▇▇▇▇, secret process or
improvement;
9.1.2 every work in which copyright may exist; and
9.1.3 moral rights (as defined by sections 77 and 80 of the Copyright,
Designs and Patents Act 1988).
9.2 In the case of such Intellectual Property as is made or originated wholly
or substantially in the course of their normal duties or in the course of
duties specifically assigned to them during the Appointment by the Company
and which affect or relate to the affairs of the Company, or are capable of
being used or adopted for use in connection therewith, ("Relevant
Intellectual Property") sub-Clauses 9.3 to 9.6 (inclusive) shall apply.
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9.3 All Relevant Intellectual Property (or, in the case of Relevant
Intellectual Property made or originated by the Consultant or PS jointly
with another or others, to the full extent of the Consultant and PS's
interest therein so far as the law allows) shall be and become the
exclusive property of the Company and shall not be disclosed to any other
person, company or other undertaking without the prior written consent of
the Company. Without prejudice to the foregoing, the Consultant and PS, by
their execution of this Agreement, assign to the Company in relation to any
Relevant Intellectual Property all of their proprietary rights (if any) in
respect of all Relevant Intellectual Property for the full term thereof
throughout the world.
9.4 The Consultant and PS shall, if and when required by the Company (whether
during or after the termination of the Appointment) and at the expense of
the Company (or its nominees):-
9.4.1 give and supply all such information, data and drawings as may be
required to enable the Company (or its nominees) to exploit all
Relevant Intellectual Property to the best advantage; and
9.4.2 do, and combine with others in doing, all acts and sign and
execute all applications and other documents (including powers of
attorney in favour of nominees of the Company) necessary or
incidental to obtaining, maintaining or extending patent or other
forms of protection for such Intellectual Property in the United
Kingdom and in any other part of the world or for transferring to
or vesting in the Company or its nominees the Consultant and PS's
entire right, title and interest to and in Relevant Intellectual
Property or to and in any application, patent or other form of
protection or copyright (as the case may be), including the right
to file applications in the name of the Company or its nominees
for patent or other forms of protection or for registration of
copyright in any country claiming priority from the date of
filing of any application or other date from which priority may
run in any other country.
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9.5 The provisions of this Clause 9 shall not entitle the Consultant or PS to
any compensation except that, in the case of any invention on which a
British patent has been granted or assigned to the Company and the Company
has derived outstanding benefit from such patent, the Consultant or PS may
be entitled, by virtue of section 40 of the Patents ▇▇▇ ▇▇▇▇, to claim
additional compensation. The provisions of this Clause 7 shall not restrict
the Consultant or PS's rights under sections 39 to 43 (inclusive) of the
Patents ▇▇▇ ▇▇▇▇. The Consultant and PS, by their execution of this
Agreement, waives all moral rights conferred by Part I of Chapter IV of the
Copyright, Designs and Patents ▇▇▇ ▇▇▇▇ in respect of all Relevant
Intellectual Property.
9.6 For the avoidance of doubt, the provisions of this Clause 9 shall remain in
full force and effect notwithstanding that after the Consultant and PS have
made or originated any Relevant Intellectual Property the Appointment may
have ceased or been terminated for any reason whatsoever with the intention
that the same shall bind the heirs and assignees of the Consultant.
10. Post Completion Obligations
10.1 Since the Consultant and PS will during the Appointment by the Company,
have access to Confidential Information and dealings with the customers
clients or suppliers and other contacts of the Company for which they are
required to perform duties, they hereby agree, in order to safeguard
Confidential Information and the goodwill of the Company, that, in the
event of the termination of the Appointment, they shall not for a period of
12 months, from the date of such termination except with the prior written
consent of the Company which shall not be unreasonably withheld:-
10.1.1 entice or solicit, or endeavour to entice or solicit, away from
the Company the custom or business of any person, company or
other undertaking who or which is or has been a customer or
client of the Company and with whom or which the Consultant or PS
has dealt at any time during the 12 months immediately prior to
the date of such termination in the performance of his duties
under this Agreement;
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10.1.2 have business dealing with or accept business from any person,
company or other undertaking who or which is or has been a
customer or client of the Company and with whom or which the
Consultant or PS has dealt at any time during the 12 months
immediately prior to the date of such termination in the
performance of his duties under this, provided that this
restriction shall not prohibit the Consultant or PS from having
business dealings with or accepting business from any such
person, company or other undertaking in respect of any business
which is not in direct or indirect competition with any business
carried on by the Company as at the date of such termination and
in which the Consultant or PS was concerned to a material extent
during the 12 months immediately prior to the date of such
termination;
10.1.3 without the prior written consent of the Company, be directly or
indirectly engaged, interested or concerned in any business
carried on, or about to be carried on, by any person, company or
other undertaking which is, or is likely to be, competitive with
any business carried on by the Company as at the date of such
termination, provided that this restriction shall not prohibit
the Consultant or PS from being engaged, interested or concerned
in any such business, company or other undertaking so far as his
involvement therein or duties in connection therewith shall
relate exclusively to work of a kind or nature with which the
Consultant or PS was not concerned to a material extent during
the 12 months immediately prior to the date of such termination;
10.1.4 directly or indirectly entice or solicit, or endeavour to entice
or solicit, away from the employment of the Company any person
who was a director or employee of the Company immediately prior
to the date of such termination and who is and who was engaged in
an area of business the same or substantially similar to that in
which the Consultant or PS was engaged at any time during the 12
months immediately prior to the date of such termination and with
whom the Consultant or PS dealt or had contact in the performance
of his duties under this Agreement; or
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10.1.5 interfere, or seek to interfere, with (a) the supply to the of
any goods or services by any supplier who, during the 12 months
immediately prior to the date of such termination, shall have
supplied goods or services to the Company or (b) the terms on
which such supply was made during such period of 12 months.
The restrictions set out in this sub-Clause 10.1 shall apply to any action
taken by the Consultant or PS in any capacity (whether as principal, agent,
representative, partner, director, employee, joint venturer, consultant or
otherwise).
10.2 On the termination of the Appointment (howsoever caused), neither the
Consultant nor PS shall at any time thereafter, represent themselves still
to be connected with the Company, except with the prior consent, or at the
request, of the Board or to the extent that he shall be so connected as a
result of being a shareholder of the Company.
10.3 The Consultant and PS acknowledge and agree that each of sub-paragraphs
(i)-(v) (inclusive) of sub-Clause 10.1 constitutes an entirely separate and
independent restriction on him and that the duration, extent and
application of each of such restrictions are no greater than is necessary
for the protection of the legitimate interests of the Company for which he
is required to perform duties.
10.4 While the restrictions set out in sub-paragraphs (i)-(v) (inclusive) of
sub-Clause 10.1 are considered by the parties hereto to be reasonable in
all the circumstances, it is acknowledged that restrictions of such a
nature may fail or become invalid for technical reasons unforeseen or
because of changing circumstances and, accordingly, the parties hereto
agree that if any of such restrictions shall be adjudged to be void or
ineffective as going beyond what is reasonable in all the circumstances for
the protection of the interests of the Company or for any other reason but
would be valid and effective if part of the wording thereof was deleted
and/or any period or area referred to therein reduced in time or scope,
such restrictions shall apply with such deletions or modifications as may
be necessary to make them valid and effective.
11 Enhancement and Equity Participation
It is the intention of the Company to establish a scheme whereby the
Consultant shall be able to participate in the equity of the Company and
whereby the Consultant shall be entitled to performance related enhanced
payments set by the Company and notified to the Consultant in due course
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12. General
12.1 With effect from the Commencement Date all other agreements or arrangements
whether written or oral express or implied between the Consultant and the
Company relating to the services provided by the Consultant and PS shall be
deemed to have been superseded
12.2 The expiration or termination of this Agreement howsoever arising whether
or not in accordance with its terms by either party shall not affect such
of the provisions hereof as are expressed to operate or have effect after
the termination of this Agreement and shall be without prejudice to any
right of action already accrued to either party in respect of any breach of
this Agreement by the other party
12.3.1 All communications between the parties with respect to any of the
provisions of this Agreement shall be handed to the party
concerned delivered to the addresses set out in this Agreement or
sent by pre-paid first class post to the addresses set out in
this Agreement or to such other addresses as may have been
notified in writing by the parties
12.3.2 Communications which are by pre-paid first class post sent by
pre-paid first class post shall in the absence of industrial
action by Post Office employees be deemed to have been received
by the addressee two business days after the day of posting and
in the event of such industrial action shall be deemed to have
been received two business days after resumption of normal
working
12.3.3 In proving service by post it shall only be necessary to prove
that the communication was contained in an envelope which was
duly addressed stamped first class and posted and that the post
was operating normally during that time
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12.4 No failure by the Company to exercise nor any delay by the Company in
exercising any right power or remedy hereunder shall operate as a waiver of
that or any other right power or remedy of the Company nor shall any single
or partial exercise of any right power or remedy preclude any other or
further exercise of that or any other right power or remedy.
12.5 Neither this Agreement nor any of the benefits hereunder shall be
assignable by the Consultant
12.6 The construction and validity and performance of this Agreement shall be
governed by the laws of England
12.7 The parties irrevocably agree to submit to the exclusive jurisdiction of
the Courts of England
AS WITNESS the hand of the duly authorised representative of the Company and IN
WITNESS the Consultant executes this Agreement as a deed on the date of this
Agreement
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EXECUTED AS A DEED by the )
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Company acting by:- )
Director
Director/Secretary
EXECUTED AS A DEED by )
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[ ] LIMITED acting by:- )
Director
Director/Secretary
EXECUTED AS A DEED by )
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▇▇▇▇▇ ▇▇▇▇▇ in the presence of:- )
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Initial Roles and Responsibilities - to April 30 2002
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o Project co-ordination with suppliers and key personnel
o Participate in developing business plan
o Participate in defining overall corporate structure
o Hand over financial plan to FS2 Finance Director
o Take up role of Sales and Marketing Director
o Establish vendor and agent agreement structures and develop vendor and
agent contract templates
o Develop overall Sales and Marketing Plan to include a 60 month vision, 18
month rolling plan with sales targets and a detailed 6 month plan.
o Develop ongoing roll out plan
o Agree the Proof of Concept presentation
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▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇ - ▇▇ ▇▇▇▇, Q1 2003
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o Sales and Marketing Director
o Execution of overall Sales and Marketing plan and ongoing validation
against the business plan
o Manage the overall sales and marketing activities and deliver customers to
agreed sales targets
o Product directors CAR, RAIL and TOURISMlink as direct reports
o Develop vendor marketing plan
o Develop agent marketing plan
o Attend meetings and events as requested by BSP TRAVELlink management team.
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