DATED 9th March 2000
SERVICE AGREEMENT
relating to
EUROTELECOM COMMUNICATIONS INC
[DIRECTOR SERVICE AGREEMENT]
EUROTELECOM COMMUNICATIONS INC (1)
PHILIP SHAUN DERRY (2)
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DATE
9th March 2000
PARTIES
(1) EuroTelecom Communications Inc whose principal office is at F4
Mexborough Business Centre, College Road, Mexborough, South Yorkshire
S64 9JP ("the Company")
(2) Philip Shaun Derry of Littlewood, Selby Road, Camblesforth, Selby,
North Yorkshire YO8 8HX ("the Executive")
INTERPRETATION
(1) In this Agreement, unless the context otherwise requires, the following
expressions have the meanings set out below:
Admission admission of the ordinary shares of 5p each
in the capital of the Company to the
Alternative Investment Market ("AIM") first
becoming effective as laid down by paragraph
16.6 of the AIM Rules of the London Stock
Exchange;
the Appointment the employment of the Executive pursuant to
this Agreement;
the Board the board of directors of the Company for
the time being (including any committee of
the Board);
the Commencement Date Admission or such other date on which
Admission takes place being no later than 30
April 2000;
Confidential Information all information which may be imparted in
confidence or be of a confidential nature
relating to the business or prospective
business, current or projected plans or
internal affairs of the Company or any Group
Company and, in particular, but not limited
to all Know-how, Marketing Information,
trade secrets, unpublished information
relating to the Company's or any Group
Company's intellectual property and any
other commercial, financial or technical
information relating to the business or
prospective business of the Company or any
Group Company or to any customer or
potential customer or supplier or potential
supplier, licensee, officer or employee of
the Company or any Group Company or to any
member or person interested in the share
capital of the Company or any Group Company;
Documents documents, disks, memory, notebooks, tapes
or any other medium, whether or not
eye-readable, on which information (whether
confidential or otherwise) may from time to
time be referred to, written or recorded;
the ERA the Employment Rights Act 1996;
Group all companies being any of a subsidiary or
subsidiary undertaking of the Company or a
holding company or parent undertaking of the
Company or a subsidiary or subsidiary
undertaking of any such holding company or
parent undertaking;
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Group Company any company within the Group and references
to the "Group Companies" shall be construed
accordingly;
Key Employee any employee who is or was (in the Period)
employed to the knowledge of the Executive:-
(a) at management grade; or
(b) in a senior capacity; or
(c) in a capacity in which he has access to
or obtained Confidential Information;
Know-how information (including without limitation
that comprised in formulae, specifications,
designs, drawings, component lists,
databases, software (or pre-cursor
documents), databases, manuals, instructions
and catalogues) held in whatever form
relating to the creation, production or
supply of any products or services by the
Company or any Group Company, or by or to
any of the suppliers, customers, partners or
joint venturers of such company;
Marketing Information information relating to the current or
prospective marketing or sales of any
products or services of the Company or any
Group Company, including lists of customers'
and suppliers' names, addresses and
contacts, sales targets and statistics,
market share and pricing statistics,
marketing surveys, research and reports and
advertising and promotional material;
Period the period of 12 months immediately
preceding the Termination Date;
Permitted Interest an interest in any class of shares or other
securities of any company which are traded
on a recognised investment exchange which
amount to not more than 3% of such class of
issued shares or securities or an interest
in such traded shares or securities as
notified to and permitted by the Board (not
a committee) and an interest in any units of
any authorised unit trust;
Remuneration Committee a committee of the Board which determines
the annual salary, any bonuses and other
remuneration payable to the Executive and
other members of the Board and of which a
majority consists of non-executive
directors; and
Termination Date the date of termination or expiration of the
Appointment.
(2) The expressions "subsidiary" and "holding company" have the meanings
given to them by Sections 736 and 736A of the Companies Act 1985; the
expressions "parent undertaking" and "subsidiary undertaking" have the
meanings given to them by Sections 258, 259 and 260 of the Companies
Act 1985; and the expression "financial year" has the meaning given by
Section 223 of the Companies Act 1985.
(3) The provisions of Sections 324 and 328 of the Companies Act 1985 apply
in determining for the purpose of Clauses 8 and 9 whether the Executive
has an interest in any shares or other securities.
(4) References to Clauses, Parties, and the Schedules are respectively to
Clauses of and the Parties and the Schedules to this Agreement.
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(5) References to any enactment are to be construed as referring also to
any enactment or re-enactment thereof (whether before or after the date
hereof), and to any previous enactment which such enactment has
replaced (with or without amendment provided that the amendment does
not change the law as at the date hereof) and to any regulation or
order made thereunder.
(6) The clause headings are for ease of reference only and shall not affect
the interpretation of this Agreement.
OPERATIVE PROVISIONS
1 JOB TITLE
The Company shall employ the Executive and the Executive shall serve
the Company as President and Chief Executive Officer or in such other
capacity as the Board may reasonably require.
2 PERIOD OF EMPLOYMENT
2.1 The Appointment shall be deemed to have commenced on the Commencement
Date and, unless terminated earlier under Clause 12, will continue
until terminated by either party giving to the other not less than 12
months' notice in writing to expire at any time.
2.2 The Company (and any relevant Group Company) shall not be obliged to
provide work to the Executive at any time after notice of termination
of the Appointment shall have been given by either party under any of
the provisions of this Agreement and the Company may, in its
discretion, take any one or more of the following steps in respect of
all or part of an unexpired period of notice:
(a) require the Executive to comply with such conditions as it may
specify in relation to attending at, or remaining away from,
the place(s) of business of the Company and the Group
Companies; and / or
(b) pay the Executive his fixed salary entitlement in lieu of all
or any part of the unexpired period of notice (subject to
deduction at source of income tax and applicable national
insurance contributions).
2.3 If the Executive fails to make himself available to work during any
period of notice of termination of the Appointment other than at the
request or with the permission of the Board, the Company reserves the
right to deduct one day's salary for each day of absence during such
notice period.
2.4 Subject to clause 2.5, if during the Appointment the Executive shall be
removed from his office as a director of the Company pursuant to any
power in that behalf given to the Board or to the members of the
Company by law or by the Articles of Association of the Company, or if
he shall retire from his office as a director of the Company by
rotation and shall not be re-elected, such event will not be deemed to
be a breach of this Agreement, and the job title of the Executive shall
be altered appropriately.
2.5 If the Executive shall cease by reason of his own act or default to be
a director of the Company he shall be deemed to be in breach of this
Agreement.
3 DUTIES
3.1 During the term of the Appointment, the Executive shall have (in
addition to his implied duty of fidelity and his duties as a director
at law) the following duties and obligations:
(a) at all times to use all reasonable endeavours to promote the
interests and welfare and maintain the goodwill of the Company
and any other Group Company and not to do and to exercise all
reasonable endeavours to prevent there being done anything
which may be prejudicial or detrimental to the Company or any
Group Company;
(b) faithfully and diligently to perform his duties and to
exercise and carry out such powers and functions as may from
time to time be vested in him by or under the authority of the
Board;
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(c) to devote the whole of his time and attention, with the
ability to organise his own affairs having regard to the
interests of the Company or any other Group Company, and
devote the full benefit of his knowledge, expertise and skills
in the proper performance of his duties (unless on holiday as
permitted by this Agreement or prevented by ill-health or
accident);
(d) to give (in writing if so requested) to the Board, or to such
person(s) as it may direct, such information and explanations
regarding the affairs of the Company or any other Group
Company or matters relating to the Appointment as the Board
may require; and
(e) to comply with any applicable code relating to dealings in
securities of the Company including, without limitation, the
"Model Code" as set out in the Rules of the London Stock
Exchange and the City Code on Takeover and Mergers, all lawful
directions from time to time given to him by or under the
authority of the Board and, save as inconsistent with the
express terms of this Agreement, all applicable rules and
regulations from time to time laid down by the Company
concerning its employees;
(f) comply with the provisions of Chapter 16 of the Rules of the
London Stock Exchange relating to a Company listed on the
Alternative Investment Market;
(g) to comply with the provisions of Schedule 1 (Copyright and
Inventions); and
(h) to comply with US securities laws, federal laws and the laws
of the state of Delaware.
3.2 The Executive shall attend and work at any of the places of business of
the Company and/or the Group as determined from time to time by the
Board and shall travel to and work at such places (whether within or
outside the United Kingdom) in the manner and on the occasions required
from time to time by the Board.
3.3 The Board may require the Executive to perform services for any Group
Company wherever situated and without further fees or remuneration and
to enter into any separate agreement(s) with such Group Company for
such purpose and any duties that he may have under this Agreement will
be deemed to extend to such Group Company, provided that this does not
interfere with the proper performance of the Executive's duties as
President and Chief Executive Officer of the Company.
3.4 The hours of work of the Executive are not fixed but are the usual
working hours of the Company and such additional hours as may be
necessary to enable him properly to discharge his duties. The Executive
acknowledges that he may be required to work more than forty eight
hours in a week.
3.5 The Company may at any time appoint another person or persons to act
jointly with the Executive in discharging his duties.
3.6 The Executive shall:
(a) at the request and expense of the Company, submit annually to
a medical examination by a medical practitioner nominated by
the Company as part of a health screening programme and for
insurance purposes; and
(b) authorise such medical practitioner to disclose to or discuss
with the Company's medical adviser any matters arising from
such examination; and the Company's medical adviser may notify
the other directors of the Company of any serious matter if,
in his opinion, it might materially and adversely affect the
health of the Executive or the proper discharge of his duties.
4 PAY AND EXPENSES
4.1 The Company shall pay to the Executive for the proper performance of
his duties under this Agreement a fixed salary at the rate of
(pound)150,000 per annum (or such higher rate as the Company may from
time to time notify in writing to the Executive).
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4.2 The Company intends to operate a discretionary bonus scheme which is to
be approved by the Remuneration Committee. The Executive shall be
entitled to participate in such scheme.
4.3 The fixed salary of the Executive will:
(a) accrue from day to day and be payable by equal quarterly
instalments in arrears by not later than the last working day
of the month at the end of such quarter;
(b) notwithstanding anything to the contrary contained in the
Articles of Association of the Company or of any other Group
Company, be inclusive of any other fees or remuneration of any
description which the Executive might be entitled to receive
from the Company or any Group Company or any other company or
association in which he holds office as a nominee or
representative of the Company or any Group Company (and the
Executive shall, at the discretion of the Board, either waive
his right to any such remuneration or account to the Company
for the same forthwith upon receipt);
(c) be paid by credit transfer to the account nominated by the
Executive from time to time; and
(d) be capable of set off by the Company from time to time against
any liability of the Executive to the Company.
4.4 Subject to clause 4.5, the fixed salary shall be reviewed by the
Remuneration Committee in the month of July each year. Increases are
not automatic but will be based on individual merit and performance.
4.5 The Executive hereby authorises the Company to deduct from any
remuneration accrued and due to him under the terms of this Agreement
(whether or not actually paid during the Appointment) or from any pay
in lieu of notice:
(a) any overpayment of salary or expenses or payment made to the
Executive by mistake or through any misrepresentation;
(b) any debt owed by the Executive to the Company or any Group
Company;
(c) any other sum or sums which may be required to be authorised
pursuant to Section 13 of the ERA; and
(d) any tax or Social Security contributions due in respect of
remuneration or any other monies received or receivable by the
Executive from the Company.
4.6 The Company shall repay to the Executive all reasonable travelling,
hotel and other expenses properly incurred by him in or about the
performance of his duties, subject to the Executive having delivered to
the Company such form(s) and vouchers or other evidence of actual
payment of such expenses as the Company may from time to time require.
The decision of the Board as to what constitutes reasonable expenses
shall be conclusive.
5 OTHER BENEFITS
5.1 If the Company adopts a Company car policy, then until notice of
termination of the Appointment is given under Clauses 2 or 12 and
subject to the Executive holding and continuing to hold a full driving
licence, the Remuneration Committee may decide to provide the
Executive:-
(a) a motor car of a type to be agreed between the Executive and
the Remuneration Committee for use by him in accordance with
the Company's car policy in force from time to time; or
(b) with a contract hire allowance for a suitable motor car at a
rate to be set by the Remuneration Committee and this
allowance will include maintenance, repairs, motor tax and
insurance but may exclude business mileage.
5.2 The Executive shall be entitled to participate, at the Company's
expense, in any permanent health insurance scheme as the Remuneration
Committee may decide to set up and provide from time to time subject to
the Company's right to terminate or substitute other schemes for such
schemes and subject to clause 12.1(a).
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5.3 The Executive shall be entitled to participate, at the Company's
expense in such medical insurance and life insurance scheme as the
Remuneration Committee may decide to set up and provide from time to
time subject to the rules of such scheme.
5.4 The Executive shall be entitled to become a member of the Company
Pension Scheme which the Remuneration Committee may decide to set up.
5.5 Any benefits which may from time to time be provided by the Company or
any other Group Company to the Executive or his family which are not
expressly referred to in this Agreement shall be provided at the entire
discretion of the Company and, unless so agreed in writing, shall not
form part of the Executive's terms and conditions of employment.
5.6 Should the Executive's employment be terminated for whatever reason the
Company reserves the right:
(a) to make a cash allowance in lieu of the benefits to which the
Executive is entitled for any period of notice; or
(b) to make provision for the continuation of such benefits for
that period;
or partly the one and partly the other. The provision of benefits
pursuant to paragraph (b) above will cease immediately should the
Executive commence new employment at any time prior to the expiry of
the notice period.
6 HOLIDAY
6.1 In addition to the usual public and bank holidays, the Executive shall
be entitled to 25 days' paid holiday in each complete holiday year
worked (and pro rata for part of each holiday year worked) to be taken
at such time or times as shall be agreed by the Board.
6.2 The holiday year runs from 1 January each year to the following 31
December. No holiday entitlement may be carried forward from one
holiday year to the next and no money will be paid in lieu of any such
untaken holiday entitlement.
6.3 Upon termination of the Appointment, other than pursuant to Clause
12.1, the Executive's entitlement to holiday will be calculated on the
basis of 2.1 working days for each calendar month of service completed
during the holiday year in which termination occurs and payment in lieu
of untaken holiday entitlement may be made at the discretion of the
Board.
7 CONFIDENTIALITY
7.1 Neither during the continuance of the Appointment, other than in the
proper course of his duties and for the benefit of the Company, nor
after the Termination Date for any reason whatsoever, shall the
Executive:
(a) use, disclose or communicate to any person any Confidential
Information which he shall have come to know or have received
or obtained at any time (before or after the date of this
Agreement) by reason of or in connection with his service with
the Company; or
(b) copy or reproduce in any form or by or on any media or device
or allow others access to or to copy or reproduce Documents
containing or referring to Confidential Information.
7.2 The Executive acknowledges that all Documents containing or referring
to Confidential Information at any time in his control or possession
are and shall at all times remain the absolute property of the Company
and the Executive undertakes, both during the Appointment and after the
Termination Date:
(a) to exercise due care and diligence to avoid any unauthorised
publication, disclosure or use of Confidential Information and
any Documents containing or referring to it;
(b) at the direction of the Board, to deliver up any Confidential
Information (including all copies of all Documents whether or
not lawfully made or obtained) or to delete Confidential
Information from any re-usable medium; and
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(c) to do such things and sign such documents at the expense of
the Company as shall be reasonably necessary to give effect to
this Clause and/or to provide evidence that it has been
complied with.
7.3 The restrictions in Clause 7.1:
(a) will not restrict the Executive from disclosing (but only to
the proper recipient) any Confidential Information which the
Executive is required to disclose by law or any order of the
court or any relevant regulatory body, provided that the
Executive shall, unless obliged by law, have given prior
written notice to the Company of the requirement and of the
information to be disclosed and allowed the Company an
opportunity to comment on the requirement before making the
disclosure; and
(b) will not apply to Confidential Information which is or which
comes into the public domain otherwise than as a result of an
unauthorised disclosure by the Executive or any other person
who owes the Company an obligation of confidentiality in
relation to the information disclosed.
7.4 Nothing in this Agreement shall restrict the rights of the Executive to
make a Protected Disclosure under the ERA. If the Executive has a
particular grievance, concern, disclosure or information of a
particularly sensitive nature or has reasonable grounds to believe that
the Company has committed a crime, a breach of its legal obligations, a
miscarriage of justice or a breach of health and safety or
environmental legislation, the Executive should raise this in the first
instance with a non-executive director of the Executive's choice.
7.5 The Executive agrees that the restrictions set out in this Clause 7 are
without prejudice to any other duties of confidentiality owed to the
Company whether express or implied and are to survive the termination
of the Appointment.
8 RESTRICTIONS DURING EMPLOYMENT
8.1 Save as permitted under Clause 8.2, the Executive shall not during the
Appointment carry on or be concerned, engaged or interested directly or
indirectly (whether as principal, shareholder, partner, employee,
officer, agent or otherwise) in any trade or business other than that
of the Company and shall not engage in any other activity which the
Company reasonably considers may impair his ability to perform his
duties under this Agreement.
8.2 The Executive may:
(a) hold a Permitted Interest; and/or
(b) carry on or be concerned, engaged or interested in any other
trade or business if he shall have:
(i) provided, on the basis of the utmost good faith, full
particulars of its nature and of the likely demands
it will make on his time and abilities;
(ii) obtained the prior written consent of the Board,
which consent may be given subject to such terms or
conditions as it may decide (each of which shall be
considered to be a term of this Agreement) and the
Company shall have the right to reconsider the
consent or the terms if it reasonably considers that
it is in the interests of the Company to do so; and
(iii) if required by the Company at any time, provide full
details of such hours as he may spend on its business
to enable the Company to comply with the requirements
of the Working Time Regulations 1998.
8.3 The Executive shall not during the Appointment (save in a purely social
capacity or with the prior written consent of the Board) make any
contact, whether formal or informal, written or oral, with any of the
Company's past, current or prospective suppliers, customers or clients
with whom the Executive has had business dealings (directly or
indirectly) for any purpose (including but not limited to an intention
to set up a competing business or to seek employment) other than for
the legitimate business interests of the Company.
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8.4 The Executive shall not during the Appointment either on his own behalf
or on behalf of any person, firm or company:
(a) solicit or endeavour to entice away from the Company an actual
employee, or discourage from being employed by the Company any
person who, to the knowledge of the Executive, is an employee
or a prospective employee of the Company; or
(b) employ or procure another person to employ any such person.
8.5 The restrictions set out in this Clause 8 are without prejudice to any
other fiduciary duties owed to the Company whether express or implied.
9 RESTRICTIONS AFTER EMPLOYMENT
9.1 The Executive shall not, save in respect of a Permitted Interest or
with the prior written consent of the Board (which shall not be
unreasonably withheld), for a period of 6 months from the Termination
Date carry on or be concerned or engaged or interested directly or
indirectly (whether as principal, shareholder, partner, employee,
officer, agent or otherwise) in any trade or business which competes
with any trade or business carried on by the Company in which the
Executive shall have been actively engaged or involved at any time
during the Period.
9.2 The Executive shall not for a period of 6 months from the Termination
Date either on his own behalf or on behalf of any person, firm or
company in relation to the business activities of the Company in which
the Executive has been engaged or involved, directly or indirectly:
(a) solicit, approach or offer goods or services to or entice away
from the Company any person, firm or company who was a client
or customer of the Company during the Period with whom the
Executive has been actively engaged or involved by virtue of
his duties hereunder during the Period; or
(b) deal with or accept custom from any person, firm or company
who was a client or customer of the Company during the Period
with whom the Executive has been actively engaged or involved
by virtue of his duties hereunder during the Period; or
(c) solicit or approach or offer goods or services to or entice
away from the Company any person, firm or company who was a
supplier, agent or distributor of the Company during the
Period with whom the Executive has been actively engaged or
involved by virtue of his duties hereunder during the Period;
or
(d) deal with or interfere with any person, firm or company who
was a supplier, agent or distributor of the Company during the
Period and in each case with whom the Executive has been
actively engaged or involved by virtue of his duties hereunder
during the Period;
PROVIDED THAT nothing contained in these paragraphs (a) to (d) shall
prohibit the Executive from carrying out any activities which are not
in competition with any part of the business of the Company with which
the Executive was involved in the Period.
9.3 The Executive shall not for a period of 6 months from the Termination
Date either on his own behalf or on behalf of any person, firm or
company in relation to the business activities of the Company in which
the Executive has been engaged or involved, directly or indirectly,
approach, solicit, endeavour to entice away, employ, offer employment
to or procure the employment of any person who is or was a Key Employee
with whom the Executive has had dealings during the Period whether or
not such person would commit any breach of his contract of employment
by reason of so leaving the service of the Company or otherwise.
9.4 The Executive shall not, at any time after the Termination Date, either
on his own behalf or on behalf of any other person, firm or company
directly or indirectly:
(a) interfere or seek to interfere with the continuance, or any of
the terms, of the supply of goods or services to the Company;
or
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(b) represent himself as being in any way connected with or
interested in the business of the Company (other than as a
consultant or a member if such be the case) [or use any name
which is identical or similar to or likely to be confused with
the name of the Company or any product or service produced or
provided by the Company or which might suggest a connection
with the Company.
9.5 For the avoidance of doubt the period of the restrictions in these
Clauses 9.1, 9.2(a), 9.2(b), 9.2(c), 9.2(d), 9.3 and 9.4 shall be
reduced by the period, if any, spent by the Executive during which the
Executive is precluded from attending at the Company's premises, from
contacting clients, customers, suppliers or agents of the Company and
is not in receipt of Confidential Information in accordance with Clause
2.2(a).
9.6 The Executive (who acknowledges that, in the course of the Appointment,
he is likely to have dealings with the clients, customers, suppliers
and other contacts of the Company) agrees that each of the restrictions
in Clauses 9.1, 9.2(a), 9.2(b), 9.2(c), 9.2(d), 9.3 and 9.4 is separate
and distinct, is to be construed separately from the other
restrictions, and is reasonable as regards its duration, extent and
application for the protection of the legitimate business interests of
the Company. However, in the event that any such restriction shall be
found to be void or unenforceable but would be valid or enforceable if
some part or parts of it were deleted, the Executive agrees that such
restriction shall apply with such deletions as may be necessary to make
it valid and effective.
10 RELEVANT DEFINITIONS
For the purposes of the restrictions set out in Clauses 7, 8 and 9:
(a) the expression "Company" shall include any former owner or
transferor of a business acquired by the Company by which the
Executive shall have been employed under a contract of
employment in respect of which his service is included for the
purposes of calculating continuous employment with the
Company;
(b) any reference to the Company and to the Company's trade or
business shall be deemed to include any Group Company and its
trade or business and/or to apply to them as if the words were
repeated by reference to such company insofar as the Executive
shall have been performing services for a period of not less
than three months for such Group Company at any time during
the Period and the Executive hereby undertakes to execute any
further documents which the Company may require to confirm
this; and
(c) where references to the Company and Company's trade or
business are deemed to include and/or apply to a Group Company
and to a Group Company's business pursuant to paragraph (b) of
this Clause 10, the Executive covenants with the Company for
itself and in the same terms in relation to each such Group
Company and each Group Company's business as he does with the
Company and in respect of the Company's business.
11 ABSENCE, ILLNESS AND INCAPACITY
11.1 If at any time the Executive is prevented by reason of ill-health,
accident or other incapacity from properly performing his duties he
shall promptly furnish to the Company, if required, evidence of such
incapacity in a form satisfactory to the Board.
11.2 The Company shall pay the Executive his fixed salary (less an amount
equal to his statutory sick pay) for the first 180 days in aggregate in
any calendar year of absence due to illness or other incapacity, but
shall not be required to pay the Executive any salary or other
remuneration for any further periods of such absence in any calendar
year, although it may at its discretion do so.
12 TERMINATION
12.1 The Company may at any time terminate the Appointment with immediate
effect (or by such longer period of notice as the Company shall see
fit) by giving the Executive written notice in any of the following
events:
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(a) if the Executive at the time the notice is given is prevented
by reason of ill-health or accident or other incapacity from
properly performing his duties and has been so prevented
(whether by the same or another reason) for at least a
continuous period of 180 days or for an aggregate period of at
least 180 days (whether or not, in either case, working days)
in the preceding 12 months;
(b) if the Executive shall have:
(i) neglected or failed or refused to carry out any of
his duties hereunder or otherwise as an Executive of
the Company or any Group Company;
(ii) committed any material breach or non-observance or,
after having been given warning in writing, any
repeated or continued breach or non-observance of any
of his duties or any of his express or implied
obligations arising from the Appointment or otherwise
as a director of the Company or Group Company
including refusing to comply with any reasonable
instructions given to him by the Board;
(iii) been guilty of conduct or permitted or suffered
events tending in the reasonable opinion of the Board
to bring himself, the Company or any Group Company
into disrepute;
(iv) become prevented by an applicable law or regulation
from continuing as a director of the Company or
performing any of his duties;
(v) committed any act of fraud or dishonesty (whether or
not connected with the Appointment) or committed any
act which, in the reasonable opinion of the Board,
adversely affects his ability properly to carry out
his duties;
(vi) become unable to pay his debts for the purposes of
Section 268 of the Insolvency Act 1986, claimed the
benefit of any Act for the time being in force for
the relief of insolvent debtors or proposed or made
any arrangement or composition with his creditors;
(vii) been convicted of a criminal offence (excluding an
offence under road traffic legislation in respect of
which he is not sentenced to a term of imprisonment,
whether immediate or suspended); or
(viii) become of unsound mind or a patient as defined in
either Section 112 or Section 145 of the Mental
Health Act 1983 or been admitted to a hospital in
pursuance of an application made under Part 11 of
that Act.
12.2 Upon termination of the Appointment however arising:
(a) the Executive shall, without prejudice for any claim he may
have arising out of the termination of this employment
hereunder, forthwith at the request of the Board and without
further claim for compensation resign as a director of the
Company and from all offices held by him in any Group Company
and from all other appointments or offices which he holds as
nominee or representative of the Company or any Group Company
and, if he fails so to do, the Company is irrevocably
authorised by the Executive to appoint some person in his name
and on his behalf to execute such documents and to do such
other things as are reasonably necessary to give effect to
such resignations; and
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(b) the Executive (or, if he shall be dead, of unsound mind or
bankrupt, his personal representatives or such other persons
as shall be appointed to administer his estate and affairs)
shall deliver up to the Company in accordance with the
directions of the Board all keys, security passes, credit
cards, Documents and other property (including any motor car
provided pursuant to Clause 5.1) belonging to or relating to
the businesses or affairs of the Company or any Group Company,
including all copies of all Documents containing or referring
to Confidential Information which may be in his possession or
under his control (or that of his personal representatives or
such other persons), and shall not retain copies, extracts or
notes of any of the same.
12.4 The Executive shall have no claim against the Company in respect of the
termination of the Appointment:
(a) by reason of the liquidation of the Company for the purpose of
amalgamation or reconstruction or as part of any arrangements
for the amalgamation or demerger of the undertaking of the
Company not involving liquidation provided that the Executive
shall have been offered employment with the amalgamated or
reconstructed or de-merged company or companies on terms no
less favourable to him than under this Agreement; or
(b) in relation to any provision in any articles of association,
agreement or arrangement which has the effect of requiring the
Executive to sell or give up any shares, securities, options
or rights at any price or which causes any options or other
rights granted to him to become prematurely exercisable or
lapse.
12.5 The Board, if it has reason to suspect that any one or more of the
events set out in Clause 12.1(b) has or may have occurred, may suspend
the Executive pending the making and completion of such
investigation(s) as the Board thinks fit. While the suspension
continues, the Company shall, unless specifically otherwise provided in
this Agreement, pay to the Executive his fixed salary and provide to
him the other benefits set out in this Agreement. During the period of
suspension the Company and relevant Group Companies shall not be
obliged to provide work to the Executive and may require the Executive
to comply with such conditions as the Company may specify in relation
to attending at or remaining away from the places of business of the
Company and/or the Group Companies. The Company may later terminate the
Appointment, pursuant to the terms of this Agreement, on the grounds of
the same or any other event.
13 THE EMPLOYMENT RIGHTS ACT 1996
This Agreement contains the particulars required to be given under
Section 1 and 3 of the ERA.
14 RECORD KEEPING
In order to keep and maintain records relating to the Appointment it
will be necessary for the Company to record, keep and process personal
data relating to the Executive. This data may be recorded, kept and
processed on computer and in hard copy form. To the extent that it is
reasonably necessary in connection with the Appointment and the
performance of the Company's responsibilities as an employer, it may be
necessary for the Company to disclose this data to others, including
other employees of the Company, Group Companies, the Company's
professional advisers, the Inland Revenue and other authorities. The
Executive consents to the recording, processing, use and disclosure by
the Company of personal data relating to the Executive as set out
above. This consent cannot be withdrawn by the Executive. This does not
affect the Executive's rights as a data subject or the Company's
obligations and responsibilities under the Data Protection Act 1984
and/or the Data Protection Act 1998. For the purposes of these Acts,
the Company has nominated the [Company Secretary] as its
representative.
15 SECURITY
The Executive consents to the Company checking, recording and reviewing
telephone calls, computer files, records and e-mails and any other
compliance, security or risk analysis checks the Company considers
reasonably necessary.
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16 NOTICES
Notices by either party:
(a) must be in writing addressed:
(i) to the Company at its registered office for the time
being; and
(ii) to the Executive at his place of work or at the
address set out in this Agreement or such other
address as the Executive may from time to time have
notified to the Company for the purpose of this
Clause; and
(b) will be effectively served:
(i) on the day of receipt, where any hand-delivered
letter or a facsimile transmission is received on a
business day before or during normal working hours;
(ii) on the following business day, where any
hand-delivered letter or facsimile transmission is
received either on a business day after normal
working hours or on any other day;
(iii) on the second business day following the day of
posting from within the United Kingdom of any letter
sent by first class prepaid mail; or
(iv) on the fifth business day following the day of
posting to an overseas address of any prepaid airmail
letter.
17 GENERAL
17.1 This Agreement, which contains all the terms of employment of the
Executive, is in substitution for all existing contract(s) of
employment between the Company and any Group Company and the Executive
(whether written, oral or governed by a course of dealings) which shall
be deemed to have terminated with effect from the Commencement Date.
17.2 The waiver, express or implied, by either party of any right under this
Agreement or any failure to perform or breach by the other shall not
constitute or be deemed a waiver of any other right under this
Agreement or of the same right on another occasion.
17.3 No amendment, change or addition to the terms of this Agreement shall
be effective or binding on either party unless reduced to writing and
signed by each party adversely affected by such amendment, change or
addition.
17.4 The Executive represents and warrants that he is not a party to any
agreement, contract (whether of employment or otherwise) or
understanding which would in any way restrict or prohibit him from
undertaking or performing any of the duties of the Appointment in
accordance with this Agreement.
17.5 The Executive undertakes not to disclose or communicate any terms of
the Appointment to any other employee of any Group Company or to any
third party (other than for the purpose of obtaining professional
advice or in accordance with the law).
17.6 This Agreement is governed by and is to be construed in accordance with
the laws of England and the Parties hereby submit to the non-exclusive
jurisdiction of the High Court of Justice of England and Wales.
17.7 Except as otherwise expressly stated herein, nothing in this Agreement
confers any rights on any other person (other than the parties hereto)
pursuant to the Contracts (Rights of Third Parties) Act 1999.
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SCHEDULE 1
COPYRIGHT AND INVENTIONS
1 In this Schedule "Intellectual Property" shall mean patents, trade
marks and service marks, rights in inventions, designs, rights,
registered designs, trade names and copyrights (whether or not any of
these is registered and including applications for registration of any
such thing) and all forms of protection of a similar nature which may
subsist anywhere in the world.
2 The Executive acknowledges, having regard to the nature of the business
of the Company and other Group Companies and the nature of the
Executive's expertise, that:
(a) the normal duties of the Executive under the Appointment may
include the making of inventions;
(b) inventions may reasonably be expected to result from the
carrying out by the Executive of such duties; and
(c) due to the nature of the Executive's duties and the particular
responsibilities arising from the nature of his duties, the
Executive has a special obligation to further the interests of
the Company's undertaking.
3 The Executive shall disclose to the Company any invention made or
discovered or produced by the Executive in the course of the
Appointment (whether or not during office hours or using office
stationery and equipment) in connection with or in any way affecting or
relating to or capable of being used or adapted for use in the business
of the Company or any other Group Company.
4 The Executive shall do all things and execute all documents that may be
necessary to enable the Company or its nominee to obtain the benefit of
every invention made by the Executive in the course of his duties and
to secure patent or other appropriate protection for it.
5 Without prejudice to the provisions of paragraph 2 of this Schedule,
the Executive shall disclose to the Company full details of any
Intellectual Property or copyright work made or created by the
Executive during the continuance of his Appointment (whether or not
during office hours or using office stationery and equipment) and the
Executive hereby assigns to the Company, by way of assignment of future
copyright or other Intellectual Property rights, all rights of
copyright or other Intellectual Property rights throughout the world in
that copyright work or Intellectual Property.
6 The Executive shall, before working, assigning or granting rights in
relation to any invention or copyright work or other Intellectual
Property rights to which the Company is not entitled under this
Agreement and/or at law, allow the Company or any Group Company
nominated by it a reasonable opportunity to evaluate the same and the
Executive shall not dispose of any rights to any third party unless he
shall first have given written notice to the Company with full,
complete and bona fide details of the price and terms offered by the
third party offering the Company, or any Group Company, an opportunity
to purchase the rights concerned at the same price and on the same
terms within 28 days of the date of the notice.
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SCHEDULE 2
NOTE OF ADDITIONAL PARTICULARS UNDER SECTIONS 1 AND 3 OF THE ERA
1 For the purposes of the ERA the period of continuous employment of the
Executive began on the Commencement Date.
2 There are no disciplinary rules applicable to the Executive. Any matter
of discipline will be considered and determined by the Board, whose
decision shall be final.
3 If the Executive has any grievance relating to the Appointment, he
should apply in writing to the Board.
4 A contracting-out certificate under the Pension Schemes Act 1993 is not
in force in respect of the Appointment.
The Company shall be at liberty at any time and at its own discretion
to vary the rules and procedures referred to in this Schedule.
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ATTESTATIONS
EXECUTED as a DEED by )
EuroTelecom Communications Inc )
Director
Secretary
EXECUTED as a DEED and )
DELIVERED by Philip Shaun Derry )
in the presence of: )
Name of witness:
Address:
Occupation:
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