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EXHIBIT 99.3
CONFORMED COPY
DATED 12 March 1998
WINDGUARD LIMITED
-AND-
AURA BOOKS PLC
-AND-
▇▇▇▇▇▇ ▇▇▇▇▇▇
SECONDMENT AGREEMENT
▇▇▇▇▇▇▇ & Co.,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇.
TEL: (01908) 668555
FAX: (01908) 674344
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THIS AGREEMENT is made on 12 March 1998
BETWEEN:-
(1) WINDGUARD LIMITED a company incorporated under the laws of England and
Wales, whose registered office is at ▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ("WINDGUARD");
(2) AURA BOOKS PLC, a company incorporated under the laws of England and
Wales, whose registered office is at ▇▇/▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("AURA");and
(3) ▇▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
(the "CONSULTANT").
IT IS AGREED as follows:-
1 PROVISION OF SERVICES
1.1 The Consultant and Windguard jointly warrant and represent to Aura
that:
1.1.1 Windguard is duly incorporated with limited liability under
English law and all necessary steps have been taken to allow
it to enter into and perform its obligations under this
Agreement;
1.1.2 the Consultant is at the date hereof a full-time employee of
Windguard and has a written contract of employment with
Windguard (the "Service Agreement");
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1.1.3 Windguard has the right to the services of the Consultant
pursuant to the Service Agreement together with the right to
make the Consultant available to Aura; and
1.1.4 Windguard knows of no reason which might cause the Inland
Revenue to conclude that it is likely that income tax will not
be deducted or accounted for in accordance with the Income
(Employment) Regulations 1993, as amended in emoluments paid
by Windguard to the Consultant.
1.2 Windguard will procure that the Consultant is aware and adheres to the
terms of this Agreement.
1.3 From the date hereof until termination of this Agreement in accordance
with clause 8 below Windguard shall make available to Aura the services
of the Consultant at such times and at such places as Aura may consider
necessary (provided that the Consultant shall not be required to
perform Services at any location not within a reasonable daily
travelling distance from his place of residence at the date of this
Agreement) for the provision and completion to the Board of Directors
of Aura's satisfaction of the following services (the "Services"):
1.3.1 the Consultant shall act as chairman of Aura;
1.3.2 the Consultant shall be responsible for all duties and accept
all responsibilities incidental to his position as chairman or
as may be assigned to him by the Chief Executive Officer of
Advanced Marketing Services, Inc ("AMS"), in particular but
not limited to the Aura business of wholesale books.
1.3.3 as Chairman of Aura the Consultant shall have general
supervision over the control of Aura's normal operations and
activities, subject
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in all cases to the supervision and control of the Chief
Executive Officer of AMS. In such capacity, the Consultant
shall have access to all regularly prepared financial
statements, which he agrees to safeguard as if they were his
own confidential information.
1.4 During the term of this Agreement Windguard undertakes to:-
1.4.1 procure that the Consultant devotes during the time required
by Aura under clause 1.1 above eighty per cent. of his time,
attention and abilities to the provision of the Services to
Aura;
1.4.2 procure that the Consultant complies with such reasonable
regulations and directions as Aura may from time to time
prescribe in connection with the provision of the Services to
Aura; and
1.4.3 procure that the Consultant uses his best endeavours to
promote the interests of, and generally acts in good faith in
relation to Aura.
1.5 Windguard shall, and shall procure that the Consultant shall, use all
reasonable care and skill in the provision of Services to Aura
hereunder.
1.6 Windguard shall not be obliged to make the services of the Consultant
available to Aura when the Consultant is unable to work due to holiday,
illness or injury provided that:-
1.6.1 the Consultant's holidays (in addition to bank and other
public holidays) shall not exceed 20 working days per calendar
year plus, by arrangement with the Directors of Aura so that
one Director is always on duty, those days between Christmas
and New Year and shall be taken at times approved in advance
by Aura, such approval not to be unreasonable withheld;
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1.6.2 in the event of the Consultant's illness or injury Windguard
shall advise Aura of such illness or injury as soon as is
reasonably practicable, giving details of the illness or
injury and its likely duration.
1.7 Windguard shall procure that the Consultant complies with all
reasonable standards of safety, takes due regard and complies with any
safety regulations of Aura and any relevant statutory provision which
may be in force from time to time, and reports any incident which could
give rise to any unsafe working conditions or practices.
1.8 Aura shall make available to the Consultant suitable office
accommodation and such clerical and secretarial assistance as may be
reasonably necessary for the proper provision of the Services to Aura.
1.9 Windguard shall, whenever requested by Aura inform Aura (in writing if
requested) of the Consultant's activities in connection with the
business of Aura and shall provide the Consultant with such information
about Aura as he may reasonably require for the provision of the
Services to Aura.
2 FEES AND EXPENSES
2.1 Aura shall pay to Windguard on receipt of appropriate invoices (which
shall be VAT invoices) a fee equal to(pound)11,367 plus VAT, pro rated
for March and thereafter(pound)12,414 plus VAT per calendar month, such
fee to be payable in arrear on the last day of each calendar month
commencing March 1998. No fee shall be payable in respect of a calender
month during which the services of the Consultant have at no time been
made available to the Group (except by reason of incapacity). This fee
shall be reviewed annually, with no commitment to increase, on 12
March.
2.2 Aura shall refund to Windguard or the Consultant (as appropriate) such
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sums as shall cover all reasonable travelling and other out-of-pocket
expenses reasonably incurred by the Consultant in the proper provision
of the Services to Aura which expenses shall be evidenced in such
manner as Aura may reasonably require.
2.3 Aura shall pay to Windguard in respect of the Consultant a further fee
of (pound)10,000 at the end of each fiscal year when net income for
Aura meets or exceeds projected expectations. This further fee will
only be payable if at the end of the fiscal year concerned neither
Windguard nor the Consultant has given or received notice of
termination of this Agreement.
2.4 Aura shall pay to Windguard in respect of the Consultant a further fee
of (pound)10,000 immediately after the first anniversary of the
commencement of this Agreement, providing that, on that date, neither
Windguard nor the Consultant has either given or received notice of
termination of this Agreement.
2.5 Aura shall pay Windguard in respect of the Consultant a further fee of
(pound)10,000 immediately after the second anniversary of the
commencement of this Agreement, providing that, on that date, neither
Windguard nor the Consultant has either given or received notice of
termination of this Agreement.
3 CONFIDENTIALITY
3.1 Windguard agrees and warrants that during the term of this Agreement
and at all times thereafter all or any information (on whatsoever
media) regarding the operations, products, finance, marketing,
administration, maintenance, research and development, future
intentions and policy of the Group and AMS or any other information
which may be a trade secret or of a confidential nature (including
confidential information of any of the Group's customers) of which it
or the Consultant is or becomes aware
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shall be treated by it and the Consultant with the strictest confidence
and secrecy, and that Windguard and the Consultant shall not disclose
such information to any third party (except to employees or directors
of the Group whose province it is to know such information) or use such
information for Windguard's or the Consultant's own purposes or for any
purposes other than those of the Group without the written permission
of the Board of Directors of AMS and shall use its reasonable
endeavours to prevent publication or disclosure of such information.
3.2 Windguard shall not, and shall procure that the Consultant shall not,
either during the term of this Agreement or thereafter make any public
statement about the Group or AMS which is detrimental or prejudicial to
its business or reputation.
3.3 All notes, memoranda, records and writings made by Windguard or the
Consultant relative to the business of Aura shall be and remain the
property of Aura and shall be handed over to Aura from time to time on
demand and in any event upon the termination of this Agreement.
4 INVENTIONS
4.1 Any invention, improvement, discovery, system, software, copyright,
intellectual property rights, design or any amendment or change thereto
made by Windguard or the Consultant, solely or jointly with any other
person in relation to the business of the Group arising out of the
provision of services under this Agreement shall become the sole
property of Aura, and Windguard agrees (on behalf of itself and the
Consultant) no further right to compensation in respect of the same.
Windguard shall execute, and shall procure that the Consultant shall
execute, all such documents and do all such things reasonably required
to enable Aura to obtain registration or other protection for the
aforesaid or (if necessary) to vest ownership of the aforesaid in Aura.
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4.2 Windguard shall not, and shall procure that the Consultant shall not,
undertake any work pursuant to this Agreement if such work could or
would infringe any third party rights in respect of patents,
copyrights, registered design, or intellectual property rights, unless
and until Windguard has notified Aura in writing of such possible
infringement and Aura has given consent for Windguard or the Consultant
to proceed notwithstanding any possible infringement.
4.3 On the termination of this agreement Windguard shall deliver up all
correspondence, documentation, system design, software design, software
programmes (on whatsoever media) or other specifications or other
property of the Group which may be in its or the Consultant's
possession, custody or control.
5 COVENANTS
5.1 Each of Windguard and the Consultant undertakes not, either alone or in
conjunction with or on behalf of any other person, to do any of the
following things for a period of 12 months following termination of
this Agreement:-
5.1.1 be engaged or (except as the holder of shares in a listed
company which confer not more than five per cent. of the votes
which could normally be cast at a general meeting of the
company) directly or indirectly interested in carrying on any
business which competes with the business of the Group in any
of the countries in which the Group carries on its business;
5.1.2 solicit the custom, in relation to goods or services sold to
any person by the Group in the course of its business during
the two years before the date of termination of that person in
respect of
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similar goods or services;
5.1.3 solicit or entice away from the employment of the Group any
person who is at the date of this agreement an employee of the
Group; or
5.1.4 assist or encourage any other person to do any of the
foregoing things.
5.2 Each undertaking contained in this clause shall be construed as a
separate undertaking and if one or more of the undertakings is held to
be against the public interest or unlawful or in any way an
unreasonable restraint of trade, the remaining undertakings shall
continue to bind Windguard and the Consultant.
6 INSURANCE AND LIABILITY
6.1 Windguard shall take out and maintain full and comprehensive insurance
policies for employers' liabilities and public liability in respect of
the provision of services to Aura hereunder and shall notify the
insurers of Aura's interest and cause such interest to be noted on the
policies (if the policies so permit). Windguard shall supply to Aura on
request copies of such policies and evidence that premiums on them have
been paid.
6.2 Aura shall indemnify Windguard against any liability, loss, damage,
cost, claim or expense ("Liability") incurred by Windguard arising out
of the Consultant properly complying with regulations or directions of
Aura in providing the Services to Aura, provided that:-
6.2.1 Aura is notified promptly of any action, claim or demand which
may give rise to any Liability and that Windguard (at Aura's
cost) takes such steps in relation to such action, claim or
demand
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(including its defence or settlement) as Aura may reasonably
require; and
6.2.2 such indemnity shall not apply to the extent that any
Liability is covered by any insurance policies effected by
Windguard including (but without limitation) the insurance
policies referred to in clause 6.1 above.
7 AUTHORITY AND RELATIONSHIP OF THE PARTIES
7.1 Windguard shall not, and shall procure that the Consultant shall not,
assume, create or incur any liability or obligation on behalf of Aura
or any other member of the Group (and acknowledges that neither it nor
the Consultant has any right to do so) save as specifically authorised
by Aura in this Agreement or otherwise in writing.
7.2 Windguard shall not, and shall procure that the Consultant shall not,
at any time after the termination of this Agreement, either personally
or by an agent directly or indirectly represent itself or himself as
being in any way connected with or interested in the business of the
Group.
7.3 Windguard confirms that the Consultant is an employee of Windguard and
will remain so throughout the term of this Agreement. Accordingly,
Windguard shall be responsible for all matters in relation to the
Consultant's employment, including any disciplinary action, and shall
bear exclusive responsibility for the payment of any National Insurance
contributions, income tax and other statutory charges in respect of any
payments made to the Consultant ("Taxes") and shall indemnify and keep
indemnified Aura against any loss it suffers as a result of any claims
against it for such Taxes or any other claims arising out of the
Consultant being found to be an employee of Aura.
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7.4 Neither of the parties is the partner of the other and nothing in this
Agreement shall render the Consultant an employee or a part of Aura.
8 TERMINATION
8.1 This Agreement shall subject as hereinafter provided continue in force
until determined either by Aura or Windguard giving to the other not
less than six months' notice in writing such notice not to expire
before 12 March 2000.
8.2 Aura may terminate this Agreement forthwith by written notice to
Windguard in the event of:-
8.2.1 the Consultant being convicted of any criminal offence which
Aura believes would adversely affect its business or the
provision of the Services; or
8.2.2 the Consultant having an order under Section 253 of the
Insolvency ▇▇▇ ▇▇▇▇ made in respect of him or if an interim
receiver of his property is appointed under Section 286 of
that Act; or
8.2.3 any material or persistent default or breach by Windguard or
the Consultant of any of their respective obligations
hereunder; or
8.2.4 the Consultant being unable to perform the Services due to
sickness or incapacity for an aggregate of 90 days in any
calender year.
8.3 Either party may terminate this Agreement forthwith by written notice
to the other in the event of:-
8.3.1 the other being unable to pay its debts as they fall due; or
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8.3.2 a petition being presented or meeting convened for the purpose
of winding-up the other; or
8.3.3 the other entering into liquidation whether compulsorily or
voluntarily other than in connection with a scheme or
reconstruction or amalgamation; or
8.3.4 the other compounding with its creditors generally or have a
receiver appointed or all or any part of its assets.
9 MISCELLANEOUS
9.1 In this Agreement "Group" means Aura and any other company which is for
the time being its subsidiary or holding company or a subsidiary of
such holding company (the terms "subsidiary" and "holding company"
being as defined in section 736 of the Companies Act 1985), and any one
of those companies.
9.2 Any notice required to be given by either party hereunder shall be left
at or sent by registered or recorded delivery post to the registered
office for the time being of other party. Any such notice shall be
deemed to be served at the time when the same is handed to or left at
the address of the party to be served and if served by post seven days
after the day of posting.
9.3 This document shall constitute the whole agreement between the parties
and may only be modified or otherwise amended by written agreement of
the parties subsequent to the signing hereof.
9.4 Windguard will procure that the Services under this Agreement will be
performed exclusively by the Consultant and the rights and obligations
of Windguard hereunder shall not be capable of change or assignment by
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Windguard without the prior written consent of Aura.
9.5 This Agreement shall be governed by English law and the parties hereby
submit to the non-exclusive jurisdiction of the English Courts.
10. GUARANTEE
The Consultant hereby guarantees to Aura the due and punctual
performance in all respects of the obligations of Windguard hereunder.
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IN WITNESS whereof this Agreement has been executed the day and year first above
written.
SIGNED by )
for and on behalf of )
AURA BOOKS PLC ) C Tillinghurst
in the presence of:- )
T Pickup
SIGNED by )
for and on behalf of )
WINDGUARD LIMITED ) P ▇▇▇▇▇▇ D'Aeth
in the presence of:- )
▇ ▇ ▇▇▇▇▇
Signed by ▇▇▇▇▇▇ ▇▇▇▇▇▇ )
in the presence of:- ) A ▇▇▇▇▇▇
▇ ▇ Alais
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