Dated 12th March 1997
EXHIBIT 10.54
SERVICE AGREEMENT
Between
IFX LIMITED
And
XX XXXXXX WELLESLEY
X.X. Xxxxxxx & Co
Solicitors
00 Xxx Xxxxx
Xxxxxx XX0X 0XX
SERVICE AGREEMENT
Dated 12th March 1997
PARTIES
(1) IFX LIMITED whose registered office is at Xxxxxxx Xxxxx, 0 Xxxxxxx Xxxxxx,
Xxxxxx XX0X 0XX (the "Company"); and
(2) XX XXXXXX WELLESLEY of 00 Xxxxxx Xxxx, Xxxxxx XX00 0XX (the "Executive").
1. INTERPRETATION
In this Agreement:-
(a) the "Board" means the board of directors of the Company;
(b) the "Commencement Date" means the 12th day of March 1997;
(c) the "Group" means:
(i) the Company;
(ii) the Company's holding company (if any);
(iii) any other subsidiary of the Company or the Company's
holding company; and
(iv) any other company in which the Company is interested and whose name
is notified to the Executive by the Company as being a member of the
Group
and (where the context so admits) includes any member of the Group.
For this purpose "holding company" and "subsidiary" have the meanings given
to them by sections 736, 736A and 736B of the Companies Xxx 0000;
(d) the "Termination Date" means the date on which the Executive's employment
under this Agreement ceases;
(e) reference to any statutory provision includes a reference to that provision
as amended, extended or re-enacted and to any statutory replacement thereof
(either before or after the date of this Agreement).
2. APPOINTMENT, TERM AND CONTINUITY
(a) Subject to the provisions of this Agreement, the Executive is appointed and
shall serve the Company as a Director from the Commencement Date until his
employment is terminated by either party giving to the other not less than
three months' notice expiring at any time.
(b) The Executive's period of continuous employment with the Company for the
purposes of the Employment Protection (Consolidation) Xxx 0000 commenced on
13th November 1995.
3. REMUNERATION
The Executive shall be entitled to salary of US$100,000 per annum, paid
monthly in arrears.
4. EXPENSES
The Company shall reimburse the Executive all reasonable out of pocket
expenses properly incurred by him on the Company's business and evidenced
to the Company's reasonable satisfaction provided that such expenses shall
not exceed such amounts as may be agreed from time to time unless approved
in advance.
5. DUTIES
(a) The Executive shall act as a broker in spot and forward foreign exchange in
the inter-bank market and as a introducer of clients to other Group
companies in relation to on-exchange futures and options broking and
clearing business. The Executive shall also perform such other duties and
exercise such powers as are consistent with his appointment and as are from
time to time given to him by the Board and shall use his best endeavours to
further the interests of the Group. The
Executive shall comply with all policies and directives of the Board and
the rules of the Securities and Futures Authority Limited ("SFA") and in
particular personal account dealing and other regulatory notices and
requirements in compliance with the SFA rules.
(b) Without prejudice to sub-clause (a) the Executive shall at all times keep
the Board fully informed of his conduct of his duties on behalf of the
Company and, as the case may be, of any other member of the Group when
appropriate and shall promptly provide such information and explanations as
may be requested from time to time by the Board.
(c) The Executive's normal working hours shall be 8.30 a.m. to 6.30 p.m. on
Mondays to Fridays inclusive with one hour for lunch and he shall devote
such further time as may be necessary for the proper performance of his
duties. Pressure of work may well necessitate that longer hours are worked.
(d) The Company may require the Executive to perform his duties anywhere within
or outside the United Kingdom in the ordinary course of his duties.
(e) During his employment the Executive shall not, except with the prior
written consent of the Board, be directly or indirectly engaged, concerned
or interested in any other business or occupation provided that he may hold
and/or be interested in (for the purpose of investment only and not
exceeding one per cent of the issued share capital of any company) any
securities listed on a recognised stock exchange or dealt in on any other
public securities market.
(f) There shall be no obligation on the Company to vest in or assign to the
Executive any powers or duties or to provide any work for him, and the
Company may at any time or from time to time during any period of notice as
specified in clause 2(a) (or in circumstances in which it reasonably
believes that the Executive is guilty of misconduct or in breach of this
Agreement, in order that the circumstances giving rise to that belief may
be investigated) suspend the Executive from the performance of his duties
or exclude him from any premises of the Company and need not give any
reason for so doing. During such suspension or exclusion the Company may
require the Executive to be available by telephone during normal working
hours. Salary and other benefits will not cease to be payable by reason
only of such suspension or exclusion.
6. HOLIDAYS
(a) In addition to public holidays the Executive shall be entitled to [25]
working days' paid holiday in each calendar year which shall be taken at
such time or times as may be agreed between the Executive and the Board.
Holiday entitlement during each of the first and last calendar years of
employment shall be in direct proportion (to the nearest day) to the length
of the Executive's service during such year. The Executive shall have no
claim against the Company if he does not take his full holiday entitlement
and holiday not taken in one calendar year may not be carried forward in
whole or in part to a subsequent calendar year.
(b) Reasonable notice of proposed holiday dates must be given by the Executive
and the dates agreed with the Board. No holiday may be taken by the
Executive after notice to terminate the Executive's employment has been
given. On termination of his employment the Executive shall be entitled to
remuneration in lieu of any outstanding holiday entitlement and the Company
shall have the right to make an appropriate deduction from his final
remuneration in respect of any excess holiday taken by the Executive.
(c) The retirement age for the Executive shall be 65.
7. SECRECY
(a) The Executive shall not (except in the proper course of his duties
hereunder), either before or after the Termination Date, make use of or
divulge to any person, and shall use his best endeavours to prevent the
publication or disclosure of, any trade secret or any other private,
confidential or secret information concerning the business or finances of
the Group or any of its dealings, transactions or affairs or concerning any
third party with which the Group has dealt and all notes, memoranda and
other records of such trade secrets or information made or received by the
Executive during the course of his employment hereunder shall be the
property of the Company and shall be surrendered by him to someone duly
authorised on their behalf at the termination of his employment with the
Company or at the request of the Board at any time during the course of his
employment. In this Agreement confidential information includes, but is not
limited to, the following:-
(i) information relating to the Group's clients, prospective clients,
persons to whom the Group has made presentations and for whom
quotations have been prepared, and the requirements of such persons
in terms of the Group's business or services;
(ii) information relating to the Group's suppliers, agents and
distributors;
(iii) information relating to intellectual property in which the Group has
an interest, the marketing of the Group's products and services and
the fee arrangements in force between the Group and its clients.
(b) Whenever requested to do so by the Company, and in any event upon
termination of his employment with the Company, the Executive shall hand
over to the Company all models, equipment, documents and records (including
all computer software and programs), and other things in his possession or
control which relate to the business or affairs of the Group or of any
third party with which the Group has had dealings and no copies shall be
retained by him. As between the Company and the Executive all such
documents and records are deemed to be the property of the Company.
(c) The restrictions in sub-clause (a) shall cease to apply to information or
knowledge which may (otherwise than through the Executive's fault) become
available to the public generally.
(d) These obligations are in addition to and not in substitution for any
obligations imposed upon the Executive by law or otherwise.
8. RESTRICTIONS
(a) The Executive shall not at any time during a period of six months after the
Termination Date and in material competition with any business carried on
by the Company or any other member of the Group at the Termination Date
solicit the custom of or deal with any person, firm or company which was a
client of or a prospective client of material importance to the Company or
any other member of the Group and with whom the Executive had communicated
or associated to any material extent in the course of his employment during
the twelve months preceding the Termination Date unless the Company ceases
to carry on inter-bank foreign business.
(b) The Executive shall not at any time after the Termination Date represent
himself or cause or permit himself to be represented as being in any way
connected with the Group.
(c) The Executive shall be bound by the following restrictions in respect of
any employee of the Group who is an employee of the Company or any other
member of the Group at the Termination Date or at any time during the
preceding twelve months in an executive, managerial, technical or sales
capacity:-
(i) the Executive shall not at any time during a period of six months
from the Termination Date employ or offer to any such employee any
alternative employment or attempt in any way to persuade any such
employee to enter any alternative employment or to leave the
employment of the Group.
(ii) the Executive shall during a period of six months from the
Termination Date use his best endeavours to prevent any person, firm
or company with whom he may be engaged or connected from employing or
offering to any such employee any alternative employment or from
attempting in any way to persuade any such employee to enter into any
alternative employment or to leave the employment of the Group.
(d) The Executive acknowledges that in all the circumstances of this Agreement
(including, but not limited to, the remuneration payable to the Executive
hereunder) the restrictions and provisions herein contained are reasonable
and necessary for the protection of the Group's legitimate business
interests and he further acknowledges that, having regard to those
circumstances, such restrictions and provisions do not work harshly on him.
(e) Notwithstanding sub-clause (d), the parties agree that the covenants set
out in this clause shall be separate and severable and enforceable
accordingly and, if any of the above periods of six months following the
Termination Date referred to in sub-clauses (a), (b) and (c) shall be
adjudged to go beyond what is reasonable in all the circumstances for the
protection of the Group, a period or periods of three months following the
Termination Date shall be substituted therefor.
(f) The undertakings in this clause shall cover all actions by the Executive in
whatever capacity and whether directly or indirectly through or with any
third party, agent,
company, partnership, employee, employer, associate (within the meaning of
section 435 of the Insolvency Act 1985) or trust which if done by him
personally would breach the provisions of this clause.
(g) These obligations are in addition to and not in substitution for any
obligations imposed upon the Executive by law or otherwise.
9. INJUNCTIVE RELIEF FOR SECRECY AND RESTRICTIONS
The Executive acknowledges that the Company will have no adequate remedy at
law if the Executive violates the terms of the provisions of either of
clauses 7 ("Secrecy") or 8 ("Restrictions") above. In the event of any such
violation, the Company shall have the right, in addition to and without
prejudice to any other rights it may have, to obtain in any court of
competent jurisdiction injunctive relief or specific performance to
restrain any breach or threatened breach of this Agreement.
10. DISCIPLINARY AND GRIEVANCE PROCEDURE
In the execution of his duties the Executive shall conduct himself in a
manner befitting his appointment hereunder. If the Executive is
dissatisfied with any disciplinary decision or wishes to seek redress for
any grievance relating to his employment he shall refer it to the Chairman
of the Board whose decision shall be final.
11. TERMINATION
(a) The Executive's employment may be terminated by the Company forthwith by
notice if:-
(i) he makes any arrangement or composition with his creditors generally
or there are grounds under section 267 of the Insolvency Xxx 0000 for
the presentation of a creditor's petition for a bankruptcy order to
be made against him or an interim receiver of his property is
appointed under section 286 of that Act;
(ii) he is convicted of a criminal offence as a result of which he is
sentenced to a term of imprisonment;
(iii) he commits any serious breach of his obligations to the Company;
(iv) having committed any breach of his obligations to the Company he
fails to rectify such breach (if reasonably capable of
rectification) or commits a further or continuing breach after
warning by the Company;
(v) his conduct is in the opinion of the Board prejudicial to the
interests of the Group. The Board may take into account a
conviction for any criminal offence not covered by sub-clause (ii);
(vi) being a director of any company in the Group he resigns his
directorship or becomes prohibited by law from being a director;
(vii) he becomes of unsound mind or becomes a patient under the Mental
Health Xxx 0000;
(viii) by reason of ill health or incapacity he is prevented from
performing his duties for periods which have exceeded (or in the
reasonable estimation of the Board are likely to exceed) in
aggregate twenty-six weeks in any twelve month period.
(ix) he ceases to be authorised to conduct investment business in the
United Kingdom.
(b) Upon termination of his employment howsoever arising the Executive shall
resign without claim for compensation from all directorships and other
offices within the Group and should he fail to do so the Company is hereby
irrevocably authorised by the Executive to appoint some person in his name
and on his behalf as his attorney to sign any documents and do all things
necessary or requisite to give effect thereto.
(c) Upon the termination of the Executive's employment for whatever reason the
Company will be entitled to deduct from any payments then due or becoming
due to the Executive (whether in respect of any period before such
termination or not) any moneys which may then be or become due or may
become due thereafter from the Executive to the Company or any other member
of the Group.
(d) If the Executive's employment shall be terminated by reason only of the
liquidation of the Company for the purpose of amalgamation or
reconstruction and the Executive shall be offered employment with any
concern or undertaking resulting from such amalgamation or reconstruction
on terms no less favourable than the terms of this Agreement the Executive
shall have no claim against the Company in respect of the termination of
his employment hereunder.
12. NOTICES
All notices under this Agreement shall be in writing. Notices to the
Company may be given by the Executive either personally to Xxxxxxx Xxxxxxx
or by prepaid first class letter, facsimile or telex addressed to the
Company at its registered office for the time being. Notices to the
Executive may be given by the Company either personally or by prepaid first
class letter, facsimile or telex addressed to the Executive at his last
known address or his place of work. Any such notice unless given personally
shall be deemed, if given by letter, to have been served 48 hours from the
time of posting and in proving service by post it shall be sufficient to
show that the letter was properly addressed and posted in accordance with
the provisions of this clause and, if given by facsimile or telex, to have
been served at the time it is transmitted if transmitted between 9.00 am
and 5.30 pm London time on a business day or, if not so transmitted, at
9.00 am London time on the first business day thereafter. In proving
service by facsimile or telex it shall be sufficient to show that the
transmission was properly made and that the transmitting device was
connected to a device with a facsimile or telex telephone number reasonably
believed to be that of the party to be served.
13. PREVIOUS AGREEMENTS
(a) This Agreement supersedes any previous agreement (whether written, oral or
implied) between any member of the Group and the Executive relating to his
employment which, without prejudice to his right to receive sums accrued
due thereunder, shall be void from the Commencement Date.
(b) The Executive acknowledges and warrants that there are no agreements or
arrangements, whether oral, written or implied, between any member of the
Group and the Executive other than those expressly set out in this
Agreement and that he is not entering into this Agreement in reliance on
any representation not expressly set out herein.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law and the Executive hereby irrevocably agrees for the exclusive
benefit of the Company that the English Courts are to have jurisdiction to
settle any disputes which may arise out of or in connection with this
Agreement.
EXECUTED (in the case of the Executive as a deed) on the date appearing at the
beginning of this document.
SIGNED by
the duly authorised representative of
THE COMPANY in the presence of:- /s/ Xxxxxxx Xxxxxxx
Witness: Xxx. Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx
XX00XX
SIGNED AND DELIVERED as a deed
by THE EXECUTIVE in the presence of:- /s/ Xxxxxx Wellesley
Witness: Xxx. Xxxxx X. Xxxxxxx /s/ Xxxxx Xxxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx
XX00XX
