<PAGE>
Exhibit 10.6
DATED July 11, 2000
----------------------
E COMMERCE GROUP INC
~ and ~
RICHARD CHARLES NICHOLS
EXECUTIVE
SERVICE AGREEMENT
Shoosmiths
Regents Gate
Crown Street
Reading
Berkshire RG1 2PQ
Ref: NDH.DXN
<PAGE>
DATED: July 11, 2000
PARTIES:
1. E COMMERCE GROUP INC whose registered office is at Regents Gate, Crown
Street, Reading, Berkshire, RG1 2PQ ("the Company"); and
2. Richard Charles Nichols of Hawkers Hill Farm, Knapp Lane, Ampfield,
Hampshire, SO51 9BT ("the Executive")
1. INTERPRETATION
1.1. In this Agreement the following words and expressions shall (except
where the context otherwise requires) have the following meanings:-
"Board" the board of directors of the Company from time to
time and includes any committee of the board of
directors duly appointed by it;
"Companies Acts" the Companies Act 1985 and the Companies Act 1989;
"Confidential For the purposes of this Agreement Confidential
Information" Information Information shall mean all the
private, confidential and/or secret information
concerning the Company's business, business,
relationships or financial affairs details of
which are not in the public domain or not
generally known, such information being highly
sensitive and highly confidential by reason of the
damage that could be done to the Company's
business by any disclosure to or use by any third
party of any such information including but
without limitation to: -
(i) all inventions, trade secrets, products,
processes, methods, techniques, formulae,
compositions, compounds, projects,
developments, plans, research data,
technical data, trial results, software
source code listings and all component
sourcing and other technical information
relating to the Company's business and the
development and exploitation of the
Company's products whether or not the same
are protected as intellectual property
through patents, copyright, rights in
designs or the like; and
(ii) all other confidential information with
regard to the business and financial
affairs of the Company including financial
and personnel data and that of the
Company's customers and suppliers, and
including customer and supplier lists,
business development, sales lead
information, marketing information and
pricing policies and structures, details of
customer orders and requirements, any
proposals relating to the acquisition or
disposal of a company or part thereof or
the expansion or contraction of any of the
Company's activities; and
2
<PAGE>
(iii) any other information, whether or not in
writing marked either Sports Fitness and
Leisure Limited or E Commerce Group Inc
Personal/Private/Proprietary data or any
items specifically brought to the
Executive's attention as constituting a
trade secret or being of a confidential
nature, even if not so marked and any other
information of any kind directly or
indirectly related to the business of the
company or to the business of any client or
supplier of the Company or any third party
which comes to the Executive's knowledge
during the course of your employment
(whether or not in the proper performance
of the Executive's duties).
In the above definition references to the Company,
Sports Fitness and Leisure Limited and E Commerce
Group Inc shall also apply as if references to any
of its or their Group Companies was substituted.
"Copyright" all copyright works and designs originated
conceived written or made by the Executive alone
or with others during the course of his employment
by the Company (except only those works originated
conceived written or made by him wholly outside
his normal working hours and which are totally
unconnected with his appointment).
"Group Company" shall mean any Company which is a Subsidiary
Company or a Holding Company of the Company or a
Subsidiary of any such Holding Company.
"Holding Company" shall mean a holding Company as defined under
section 736 of the Companies Act 1985
"Subsidiary
Company" shall mean a subsidiary company as defined under
section 736 of the Companies Act 1985.
1.2. Unless otherwise stated references to Clauses sub-clauses and
Schedules are references to Clauses and sub-clauses of and Schedules
to this Agreement.
1.3. Clause headings are for ease of reference only and do not affect the
construction or interpretation of this Agreement.
1.4. References to persons shall include bodies corporate, unincorporated
associations and partnerships.
1.5. References to the singular shall include the plural.
1.6. References to writing shall include e-mail, word processing,
typewriting, printing, lithography, photography and facsimile messages
and other modes of reproducing words in a legible and non-transitory
form.
1.7. Words and expressions defined in or for the purposes of the Companies
Acts shall bear the same meanings in this Agreement unless the context
otherwise requires.
3
<PAGE>
2. APPOINTMENT AND COMMENCEMENT
2.1. The Executive is hereby appointed, as of the date of this Agreement,
in the capacities specified in Schedule 1 and shall continue to be
employed in that capacity and hold such office as Executive unless at
any time any such employment and directorship is terminated in
accordance with the provisions of Clause 17 or 18.
2.2. The Executive's employment with the Company (through its subsidiary
Sports Fitness and Leisure Limited) is deemed to have commenced on the
date specified in Schedule 1 and his period of continuous employment
shall accordingly be treated as commencing on that date.
3. DUTIES OF THE EXECUTIVE
3.1. During the continuance of his appointment the Executive shall be
required to:
3.1.1. faithfully and to the best of his abilities, serve the
Company and one or more of its Group Companies as directed
by the Company;
3.1.2. use his best endeavours to promote and protect the interests
of the Company, any of its Group Companies, their employees
and their future growth;
3.1.3. diligently perform such duties and exercise such powers in
relation to the conduct of the affairs of the Company and
any one or more of its Group Companies (including performing
duties as requested by the Board from time to time by
serving on the Board of any Group Company) as may from time
to time be assigned to him by the Board, obeying at all
times the lawful and reasonable instructions or directions
given to him by or under the authority of the Board and in
particular he shall be required to undertake the duties and
responsibilities set out in Schedule 2.
3.2. The Executive accepts that the Company may if necessary require him to
perform other duties or tasks not within the scope of his normal
duties and he hereby agrees to perform those duties or undertake those
tasks as if they were specifically required under this Agreement.
3.3. The Executive hereby agrees to comply with all policies of the Company
applicable to him, including its policy on the purchase and sale of
its stock, as such policies are in effect from time to time.
4. HOURS OF WORK
The Executive shall throughout the period of his employment devote
diligently such amount of his time, as is mutually agreed with the Board,
to his duties under this Agreement during normal business hours (which are
from 9.00 a.m. to 5.30 p.m. Monday to Friday each week) ("Core Hours") and
at such other times as the Company or his duties may reasonably request
(unless prevented by ill-health from so doing). The Company does not make
payments for overtime working to persons working at the level or position
of the Executive and the Executive Director shall be required to may work
such additional hours as may be necessary in order properly to perform
4
<PAGE>
his duties under this Agreement. The Executive hereby accepts that he is a
managing executive as an employee of the Company with he has autonomous
decision-taking powers and may choose or determine in relation to the
duration of his working time (over and above the Core Hours set out above)
for the purposes of Regulation 20 of the Working Time Regulations 1998 such
that the limits set out in Part II of those Regulations do not apply in his
case.
5. PLACE OF WORK
The Executive's principal place of work shall be as set out in Schedule 1.
The Company reserves the right to change the Executive's principal place of
work to any other location within the UK with the Executive's agreement,
such agreement not to be unreasonably withheld.
During his employment hereunder the Executive shall travel at the Company's
expense to such places and in such manner as the Board may reasonably
require. The Executive is referred to the Travel Expenses Policy at
Schedule 4 for further details.
6. REMUNERATION
6.1 The Executive shall be entitled to a basic annual salary as set out in
Schedule 1 and such salary shall accrue on a daily basis and be
payable monthly in arrears on the last working day of the month by
credit transfer. In addition to such salary the Company may in its
absolute discretion pay the Executive an Annual Performance Bonus in
accordance with an Annual Performance Bonus Scheme ("the Scheme") from
time to time in force. Details of the first year of the Scheme are set
out in Schedule 3. Any Scheme is subject to change at the discretion
of the Board at any time during any year. If applicable the Executive
will be issued with new Scheme details at the beginning of each
financial year. Notwithstanding any other terms of a Scheme, the final
decision as to whether to award an Annual Performance Bonus to the
Executive remains at the discretion of the Board.
6.2 The Executive's salary shall be reviewed by the Board annually in June
each year and may be revised taking into account the responsibilities
then undertaken by the Executive, his performance in carrying out
those responsibilities and the performance of the Company.
Notwithstanding the above, the Company shall not be obliged to make
any increases in salary.
6.3 In addition to his remuneration the Executive shall be repaid all
travelling, entertainment and other expenses reasonably incurred by
him in the proper performance of his duties subject to the Executive
complying with such guidelines, policies or regulations issued by the
Company in this respect and subject to the production to the Company
of the requisite vouchers or documentary evidence of such expenditure.
6.4 The Company will be entitled to deduct from any salary due to the
Executive any monies that may be due and owing by the Executive to the
Company such as excess of bonus/commission paid, advance payments for
anticipated expenses in excess of those expenses actually being
incurred by the Executive and pay received for holiday taken in excess
of the Executive's entitlement. Where any property or money belonging
to the Company or any Group Company or any client, customer, visitor
or other employee of the Company or Group Company is lost or damaged
(as the case
5
<PAGE>
may be) through the Executive's negligence or recklessness or through
any breach of the Company's rules or any dishonesty on the Executive's
part, the Company reserves the right to require the Executive to pay
for any such loss or damage either by a deduction from the Executive's
salary or by any other method acceptable to the Company. Deductions
will normally be made in the month following the month in which the
over payment is made or when the debt falls due and payable or any
excess holiday is taken or when the loss is incurred or identified,
but the Company reserves the right to make deductions at any time,
including upon termination of employment when the Company may make
deductions from any salary or bonus due at any time during the notice
period.
6.5 The Executive shall not be entitled to receive any directors' fees or
other remuneration by virtue of holding his offices as directors of
the Company or other Group Companies.
7. BENEFITS IN KIND
The Company shall provide the Executive with the benefits set out in
Schedule 5.
8. HOLIDAYS
8.1. The Executive shall be entitled to a basic allowance of 20 days
holiday in every calendar year which runs from 1/st/ January to 31/st/
December. The Executive shall take holiday entitlement at times agreed
in advance with the Board. Such holiday shall be exclusive of Bank and
other Public Holidays and shall be taken at such times as shall be
agreed by the Board. If the Executive is required to work on a Bank
or other Public Holiday, he shall be entitled to extra holiday equal
to the period worked to be taken as agreed in writing in advance with
the Company.
8.2. The basic holiday entitlement shall vary according to length of
service. For the holiday year next following the completion of 2
continuous years service the entitlement shall be increased to 21
subsequent increases up to a maximum of 24 days as set out below: -
Years of Completed Continuous Number of Holiday
Service as at 1/st/ January days
2 21
3 22
4 23
5 24
8.3. No payment shall be made in respect of holiday not taken in a holiday
year. However at the Board's discretion up to 5 days holiday from any
holiday year may be carried forward to the next holiday year providing
that Holiday Entitlement so carried forward must be used by the end of
March in that next holiday year.
8.4. Upon termination of his employment hereunder for whatever reason the
Executive shall as appropriate either be entitled to holiday pay in
lieu of holiday entitlement outstanding or be required to repay to the
Company any salary received for holiday taken in excess of his actual
entitlement. The basis for the calculation of such
6
<PAGE>
payment shall be 1/260 x annual basic salary for each day and the
Executive's entitlement to holiday will be deemed to have accrued at
the rate of one twelfth of current annual entitlement for each
complete month of employment in the Holiday year.
9. INCAPACITY
9.1 If the Executive is absent from work for any reason, and his absence
has not previously been authorised by the Board, he must inform a
fellow Executive both of the fact of his absence and give an
indication of the date when he expects to be able to return to work.
This information should be given as soon as reasonably practicable on
the first day of absence. The Executive should inform the Company as
soon as possible of any change in the date of his anticipated returns
to work.
9.2 Such notification does not necessarily approve such absences. Absences
which are considered excessive in the Board's opinion may lead to
disciplinary action up to and including termination of employment.
9.3 If the Executive is absent from work due to sickness or injury for
more than seven calendar days (including weekends) he must provide the
Company with a medical certificate on the eighth day of sickness or
injury. Thereafter medical certificates must be provided to the
Company on a weekly basis.
9.4 Immediately following the Executive's return to work after a period of
absence which has not previously been authorised by the Company, he is
required to complete a Self Certification Form stating the dates of
and the reason for his absence, including details of sickness on non-
working days as this information is required by the Company for
calculating Statutory Sick Pay entitlement. Self-Certification Forms
will be retained in the Company's record. Self-Certification Forms are
available from the Finance Director and the completed form should be
returned to the Finance Executive.
9.5 The Executive may be required at any time to attend a doctor or clinic
("the Medical Advisor") nominated by the Company to be medically
examined whether or not he is suffering or has suffered any period of
sickness or incapacity for work. The Executive shall ensure the prompt
delivery of the relative report to the Company. Notwithstanding the
provisions of the Access to Medical Reports Act 1988 the Executive
will allow the Company access to any medical report relating to his
physical or mental health by a medical practitioner during the period
of his employment under this Agreement.
9.6 The Executive authorises his medical notes and clinical records to be
released by his medical practitioner to the Medical Adviser if the
Company deems it necessary to obtain them for the purpose of
establishing the Executive's true medical position and/or verify the
true reason for absence.
9.7 The Executive authorises the Medical Adviser to disclose the results
of the medical examination and discuss with the Company any matter
arising from such medical examination which might impair him in
properly discharging his duties and responsibilities. Should the
Medical Adviser advise the Company that the Executive is fit to return
to work, the Company shall cease payment of any sick pay whether SSP
or Company Sick Pay.
7
<PAGE>
9.8 If any incapacity shall be or appear to be occasioned by actionable
negligence of a third party in respect of which damages are or may
be recoverable the Executive shall forthwith notify the Board of
that fact and of any claim compromise settlement or judgment made or
awarded in connection therewith and shall give to the Board all such
particulars of such matters as the Board may reasonably require. All
sums paid to the Executive during any such period of incapacity
shall be paid by way of loan only and shall if so required by the
Board be refunded to the Company provided that the Executive shall
not be required to refund a sum exceeding whichever is the less of:-
9.8.1 the amount of damages or compensation recovered by him under
such compromise settlement or judgment specifically
allocated to loss of earnings in respect of the period from
the date at which the Executive is first absent until the
date of compromise settlement or judgment or the Executive's
return to work if earlier less any costs in connection
therewith borne by the Executive; and
9.8.2 the aggregate of the remuneration paid to him by way of
salary in respect of the period of such absence as the
Company may determine.
10. SICK PAY
10.1. If the Executive is absent from work due to sickness or injury, and
subject to the Executive's compliance with the Company's
requirements regarding notification of absence and proof of
incapacity, the Company may at its absolute discretion pay the
Executive his normal salary for such period as the Company thinks
fit or appropriate ("Company Sick Pay").
10.2 When calculating Company Sick Pay, deductions will be made for any
state sickness or other Social Security benefits which the Executive
is eligible to receive (whether or not he claims such benefits).
10.3 Company Sick Pay shall be deemed to include any Statutory Sick Pay
which the Executive may be entitled to receive under the legislation
and regulations from time to time in force.
10.4 The Company reserves the right to withhold payment or deduct from
the Executive's salary one day's pay for each day of Unauthorised
Absence from work. The Board will make any decision concerning this
matter. "Unauthorised Absence" means failure to report for work
otherwise than due to: -
10.4.1 genuine sickness or injury notified to the Company in
accordance with the Company's procedures; or
10.4.2 leave for which permission has been granted by the Board; or
10.4.3 genuine reasons outside the Executive's control which are
acceptable to the Company as agreed by the Board.
8
<PAGE>
11. PENSION
The Company does operate a pension Scheme (the SFL Occupational (Money
Purchase) Stakeholder Scheme) ("the Scheme") and the Company will
contribute on a monthly basis a sum equivalent to 10% of the Executive's
monthly salary into the Scheme.
12. COPYRIGHT
12.1. The Executive shall promptly disclose to the Company all Copyright
Work and shall hold it in trust for the Company until all rights in
such Copyright Work shall be fully and absolutely vested in the
Company.
12.2. The Company shall be entitled to make such additions deletions
alterations or adaptations to or from any Copyright Work as it shall
in its absolute discretion determine and
12.2.1. the Executive hereby assigns to the Company by way of future
assignment all copyright, design right (whether registered
or unregistered) and other proprietary rights (if any) for
the full terms thereof throughout the World in respect of
all Copyright Work;
12.2.2. the Executive hereby irrevocably and unconditionally waives
in favour of the Company any and all moral rights conferred
on him by Chapter IV of Part I of the Copyright Designs and
Patents Act 1988 for any work in which the copyright or
design right is vested in the Company whether by sub-clause
12.2.1 or otherwise; and
12.2.3. the Executive shall, at the request and expense of the
Company, do all things necessary or desirable to
substantiate the rights of the Company under this Clause 12.
13. CONFIDENTIALITY
It is the duty of the Executive to adhere to the security requirements of
the Company and those (where appropriate) of customers. In the course of
the Executive's employment he will have access to Confidential Information.
Such information is highly sensitive and highly confidential by reason of
the damage that could be done to the Company's business by any disclosure
to or use by any third party of any such information. The Executive agrees
that such Confidential Information is and shall be the exclusive property
of the Company.
13.1. The Executive shall not either during his appointment or at any time
after its termination:-
13.1.1. disclose in any manner to any person or persons (except to
those authorised by the Company to know);
13.1.2. use for his own purposes or for any purposes other than
those of the Company;
13.1.3. through any failure to exercise all due care and diligence
cause or permit any unauthorised transfer or disclosure of;
9
<PAGE>
any Confidential Information.
13.2. This restriction shall cease to apply to any information or
knowledge which may (otherwise than through the default of the
Executive) become available to the public generally.
13.3. All notes, memoranda, computer and other records and writing made by
the Executive relating to the business of the Company or any of its
Group Companies shall be held confidential and delivered by him to
the Company forthwith upon request save that the Executive shall be
entitled to keep copies of Board minutes.
13.4. Any breach of the Executive's obligations under these clauses during
the course of his employment will be treated as gross misconduct,
and may result in the application of the disciplinary procedure
referred to in clause 15. This is in addition to any liability to
pay damages to the Company which a breach of this clause at any time
may give rise.
13.5. The covenants in this clause shall also apply as though references
to any Group Company were substituted for references to the Company.
The said covenants shall with respect to each Group Company
constitute a separate and distinct covenant and the invalidity or
unenforceability of any such covenant shall not affect the
invalidity or unenforceability of the covenants in favour of any
other Group Company.
14. NON-COMPETITION AND NON-SOLICITATION
14.1. The Executive and the Company acknowledge and agree that it is
necessary for the proper protection of the Company's legitimate
interests in the trade secrets and Confidential Information referred
to in clause 13 above and known to the Executive by virtue of his
employment, and of the Company's customer connections, goodwill and
sources of supply and each of the foregoing separately, that the
Executive accepts the restrictions set out in clauses 14.2 to
14.3.3.
Provisions applying during employment
14.2. During the course of his employment hereunder the Executive may not
be a director of any company (other than the Company) nor be engaged
employed concerned or in any other way interested in any other
business other than the business of the Company without the prior
written consent of the Company (such consent not to be unreasonably
withheld). Any breach of this clause 14.2 may render the Executive
liable to summary dismissal by the Company. Nothing in this Clause
14.2 shall prohibit the Executive from holding shares or debentures
quoted or dealt in on a recognised Stock Exchange in the United
Kingdom or elsewhere so long as not more than 5 per cent of the
shares or stock of any class of any one company is so held.
Provisions applying after termination
14.3. The Executive hereby undertakes to the Company that (except with the
prior written consent of the Board):-
14.3.1. he shall not at any time after the termination date (however
and whenever such termination occurs) use or procure the use
of the name of the Company
10
<PAGE>
whether or not in connection with his own or any other name
in any way calculated to suggest that he continues to be
connected with the business of the Company or in any way
hold himself out as having such connection;
14.3.2. he shall not for a period of 1 year from the termination
date (however and whenever such termination occurs)
approach, canvass, solicit, or approach with a view to
dealing or discourage from dealing with the Company or
otherwise endeavour to entice away from the Company or
accept whether as principal, partner, shareholder,
Executive, employee independent contractor or otherwise
(either on his own account or as the agent or employee of
any other person) the custom of any Client, with whom he was
directly or indirectly involved with, in respect of any
service in any way competitive with the services supplied by
the Company during the period of 12 months prior to such
termination;
14.3.3. he shall not during the period of 1 year from the
termination date on his own account or for any other person
solicit the services of, or endeavour to entice away from
the Company or approach with a view to enticing away from
the Company, any director, executive or employee of the
Company who at the date of the Executive leaving was a
director, executive or employee of the Company and with whom
the Executive had direct or indirect contact in the 12
months prior to the termination date (whether or not such
person would commit a breach of contract by reason of
leaving the service of the Company) or knowingly aid or
assist in or procure the employment of any such person, with
a view to the specific knowledge such person has of the
business and affairs of the Company and its clients, being
used by or for the benefit of any person carrying on
business in competition with the Company.
For the purposes of sub-clause 14.3.2 the term 'Client' shall mean any
person, firm or company who or which shall have been a client of the
Company or who shall have been in the habit of dealing with the
Company or which was in negotiations with the Company or who received
a quote, tender or proposal for the Company during the 12 months
preceding the termination of the Executive's employment and being a
client with whom the Executive shall have had dealings during the
course of his employment.
14.4. It is hereby declared and agreed, for the avoidance of doubt, that
each of the restrictions in clauses 14.3.1 to 14.3.3 above is a
separate restriction, to the effect that if it be determined by a
Court that any be unlawful or otherwise unenforceable, it shall be
disregarded but without effecting the validity or enforcement of the
other remaining clauses.
14.5. The covenants in this clause 14 shall also apply as though references
to any Group Company were substituted for references to the Company.
The said covenants, shall with respect to each Group Company,
constitute a separate and distinct covenant and the invalidity or
unenforceability of any such covenant shall not affect the validity or
enforceability of the covenants in favour of any other Group Company
of the Company.
11
<PAGE>
15. DISCIPLINARY AND GRIEVANCE PROCEDURES
15.1. The Disciplinary procedure applicable to the Executive's employment
is as set out in Schedule 6.
15.2. If the Executive is dissatisfied with any disciplinary decision
relating to him or has any other grievance about his employment he
should apply in writing to either the Chief Executive Officer or the
Chairman of the Company.
15.3. A meeting of the full Board shall normally be convened within 10
working days of receipt (or as soon as reasonably possible
thereafter) of the Executive's written notification in accordance
with Clause 15.2. above, at which meeting the Executive shall be
entitled to be present.
16. SUSPENSION
The Company shall not be under any obligation to vest in or assign to the
Executive any powers or duties or to provide any work for the Executive and
the Company may at any time or from time to time suspend the Executive from
the performance of his duties and exclude him from any premises of the
Company or of any client or supplier of the Company (whether or not the
Company or the Executive has served notice to terminate this Agreement).
During any such period of suspension or exclusion the Company shall
continue to pay the Executive his salary.
17. TERMINATION OF AGREEMENT ON NOTICE
Notwithstanding the provisions of clause 2.1 but except as provided for in
clause 18, the employment of the Executive may be terminated as follows:
17.1. The notice periods required to be given in writing by either the
Executive of the Company to terminate this Agreement are set out in
Schedule 1.
17.2. The Company shall not be obliged to provide the Executive with work
at any time after notice of termination shall have been given by
either party and the Company may in its absolute discretion take any
one or more of the following steps in respect of all or part of any
unexpired period of notice:-
17.2.1. pay the Executive his basic salary entitlement in lieu of
all or any part of the unexpired period of notice subject
to deduction at source of Income Tax and National Insurance
Contributions.
17.2.2. require the Executive to comply with such conditions as the
Company may specify in relation to attending or remaining
away from the place(s) of business of the Company, its
clients or suppliers;
17.2.3. assign the Executive to such other duties as the Company
shall in its absolute discretion determine;
17.2.4. any powers vested in the Executive or suspend or vary any
duties or responsibilities assigned to the Executive.
12
<PAGE>
17.3. During any period of notice of termination whether or not the
Company exercises its rights under 17.2.2, 17.2.3, or 17.2.4 the
Executive shall continue to owe duties of good faith and fidelity
and a duty not to undermine the business of the Company or any of
its Group Companies, as are provided in Clause 3 above or otherwise.
18. SUMMARY TERMINATION
18.1. Notwithstanding the provisions of Clauses 2.1 and 17 the Company
shall have the right to terminate this Agreement at any time by
summary notice in the event of the Executive:-
18.1.1. committing any serious or persistent breach of any of the
terms of this Agreement.
18.1.2. being guilty of any gross mismanagement or misconduct or
wilful neglect in the discharge of any duty owed by him to
the Company or any of its Group Companies;
18.1.3. being adjudicated bankrupt or making any arrangement or
composition with his creditors;
18.1.4. becoming a patient within the meaning of the Mental Health
Act 1983 or having an order made in respect of his property
under Section 95 of that Act;
18.1.5. being convicted of any criminal offence or being guilty of
any other conduct which in the reasonable opinion of the
Board may affect the performance of his duties under this
Agreement or prejudice the interests of the Company or any
of its Group Companies.
18.1.6. during his employment, committing any breach of Clauses
13.1 and 14.2 of this Agreement
18.2. Such termination shall be without prejudice to any other rights of
the Company or any of its Group Companies or the Executive. Any
reasonable delay by the Company in exercising such right of
termination as set out in this clause 18 shall not constitute a
waiver of such a right.
19. RETIREMENT
The Company's normal retirement age is 65 for both men and women. Unless
the Executive's employment has terminated at any earlier date it will
terminate without notice at the end of the month in which his 65th birthday
falls.
20. COMPANY PROPERTY
The Executive agrees that all files, letters, memoranda, reports, records,
data, sketches, drawings, laboratory notebooks, program listings and other
written, photographic and other tangible material containing Confidential
Information which may have been prepared by the Executive or which may have
come into his custody or possession are the property of the Company to be
used by him only in the proper performance of his duties with the Company.
13
<PAGE>
21. PROCEDURE FOLLOWING TERMINATION
Upon termination of his appointment hereunder (howsoever caused) the
Executive shall forthwith: -
21.1 deliver to the Company all property of the Company, including but
without limitation, any property mentioned in Clause 20, his Company
car, mobile phone, personal computer, lap-top computer, all keys,
credit cards, all lists of clients and customers, price lists, details
of pending contracts and quotations, business correspondence and all
other papers, documents and record in machine readable or eye-readable
form or other media which may have been prepared by him or which may
have come into his possession in the course of his employment, whether
or not in the proper performance of his duties with the Company and he
will not retain copies or notes and extracts of such documents or such
materials. The Executive shall then (if required by the Company) make
an Affidavit to the effect that the whole of the provisions of this
clause have been complied with.
21.2 at the request of the Company resign without claim for compensation
from his officeholding as an Executive of the Company.
Provided always that if for any reason the Executive fails to sign a letter
of resignation when requested to do so in accordance with this Clause the
Executive hereby unconditionally and irrevocably authorises any other
director of the Company to sign a letter of resignation on his behalf.
22. OTHER AGREEMENTS
The Executive hereby represents that, except as the Executive has already
disclosed in writing to the Company, the Executive is not bound by the
terms of any agreement with any previous employer or other party to refrain
from using or disclosing any trade secret or confidential or proprietary
information in the course of the Executive's employment with the Company or
to refrain from competing directly or indirectly with the business of such
previous employer or any other party. The Executive further represents
that his performance of all the terms of this Agreement and as an employee
of the Company does not and will not breach any agreement to keep in
confidence and/or refrain from using any proprietary information, knowledge
or data acquired by him in confidence or in trust prior to his employment
with the Company and that he will not disclose to the Company or induce the
Company to use any confidential or proprietary information or material
belonging to any previous employer or any other person or entity. The
Executive also represents that, except as disclosed in writing to the
Company, he holds no other Directorships in any other Company in the UK or
otherwise and that his performance of all the terms of this Agreement will
not put him in breach of any fiduciary duty or of a duty not to compete
with any other company of which he was in the past or of which he is at
present a director.
23. NOTICES
Any notice to be given under this Agreement shall either be delivered
either personally or by a courier appointed by the Company for the purpose.
The address for service of the Company shall be its registered office and
the address for service of the Executive shall be his usual or
14
<PAGE>
last known place of residence. A notice shall be deemed to have been
served, at the time of delivery whether delivered personally or by courier
as aforesaid.
24. FORMER SERVICE AGREEMENTS AND WRITTEN STATEMENT
24.1 This Agreement shall be in substitution for any previous letters of
appointment, agreements, (whether Service Agreements with Sports
Fitness Leisure Limited, E Commerce Group Inc or otherwise),
arrangements, whether written, oral or implied, relating to the
employment of the Executive, any and all of which shall be deemed to
have been terminated by mutual consent and the Executive acknowledges
that he has no outstanding claims of any kind against Sports Fitness
and Leisure Limited and/or E Commerce Group Inc.
24.2 This Agreement constitutes the written statement of terms of
employment of the Executive provided in compliance with Part 1 of the
Employment Rights Act 1996.
25. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
Law of England within the exclusive jurisdiction of the Courts of England
and Wales.
EXECUTED as and for a deed on the date shown on the first page
EXECUTED and DELIVERED as and ) ...........................Director
For a Deed by ) .................Director/Secretary
EXECUTED and DELIVERED as and
For a Deed by the said in the
presence of: -
Witness signature ......................................
Name ......................................
Address ......................................
......................................
......................................
Occupation ......................................
15
<PAGE>
SCHEDULE 1 - Individual Details
-------------------------------
Name: RICHARD CHARLES NICHOLS
Address: HAWKERS HILL FARM
KNAPP LANE
AMPFIELD, ROMSEY, HAMPSHIRE, SO51 9BT
Capacity: CHIEF OPERATING OFFICER of E COMMERCE GROUP INC AND MANAGING
DIRECTOR OF SPORTS FITNESS AND LEISURE LIMITED.
Date of commencement of continuous employment: 2/nd/ October 1997
Principal place of work: Currently at Ampfield but likely to be at new
offices in West Berkshire, North Hampshire or
South Oxfordshire.
Basic Annual Salary of: (Pounds)75,000.00 per anum
Notice required to terminate
Employment by either side:
During the first year
of employment - 12 months
After the first year
of employment - 12 months
Person to whom the Executive reports: CHIEF EXECUTIVE OFFICER OF E COMMERCE
GROUP INC (Tony Arnold)
16
<PAGE>
SCHEDULE 2 - Duties
-------------------
As Managing Director of Sports Fitness and Leisure Limited, Chief Operating
Officer of E Commerce Group Inc and (where applicable) as directors of such
other Group Companies to which he is appointed
Minimum Job Description and Objectives
To be confirmed by reference to the Joint Business Plan
AND such other duties as the Board may determine from time to time.
17
<PAGE>
SCHEDULE 3 - Bonus and Share Option Arrangements
------------------------------------------------
BONUS
-----
During you first year of Employment you will be eligible to participate in the
Company's Annual Performance Bonus Scheme ("Bonus Scheme"), subject to the
provisions in force from time to time, which is based upon the attainment of
both Company and your Personal Objectives. In the case of the later, dependent
upon Company Objectives being met.
For this year you could earn up to (Pounds)25,000.00 in this Bonus Year under
the following Bonus Scheme:
1/st/ Half of bonus year 2/nd/ Half of bonus year
Attributable
to:-
revenue (Pounds)2,000 (Pounds) 6,000 (32%)
profit (Pounds)3,000 (Pounds) 9,000 (48%)
management
buy out (Pounds)1,250 (Pounds) 3,750 (20%)
------------- --------------
(Pounds)6,250 (Pounds)18,750
Attainment of the above bonus elements will be based on specific goals and
objectives for each element. These will be set following the completion of the
business planning exercise for the group.
Should you fail to meet these goals and objectives set in any aspect attributed
above then you shall have an opportunity to make up for under achievement
following completion of the financial provided the audited accounts show
achievement of 110% of group budget in the following areas: -
110% achievement of the revenue goals
110% achievement of the NOPBIT
110% achievement of the NOPAT
SHARE OPTIONS
-------------
Upon becoming an Executive of E Commerce Group Inc and only after 12 months
qualifying service (since the date of your Service Agreement) as an employee
with the Company you shall be entitled to participate in E Commerce Group Inc's
Executive Share Option Scheme ("the Scheme").
Participation in such Scheme is subject to any applicable Inland Revenue limits
and to the rules of the Scheme for the time being in force.
Allocation of options to acquire shares under the Scheme is entirely a matter
for E Commerce Group Inc's discretion and that of its shareholders.
If discretion is exercised in each year the following shares options will be
allocated:
18
<PAGE>
End of Year 1 of service - option to purchase 10,000 shares @ $2.00 per share
End of Year 2 of service - option to purchase 10,000 shares @ $3.50 per share
End of Year 3 of service - option to purchase 10,000 shares @ $5.00 per share
E Commerce Group reserves the right to change the rules of the Scheme from time
to time by amendment, addition and/or deletion or to discontinue the Scheme
altogether or to declare in relation to a particular period that the Scheme will
not operate.
SCHEDULE 4 - Expenses Policy
----------------------------
You will be reimbursed for all reasonable expense properly incurred by you in
the proper performance of your duties, provided such expenses are properly
vouched or receipted evidencing actual payment as the Board may reasonably
require.
Such expenses can include: -
(1) fuel for both business and private mileage payable at the rate of
(Pounds). 40 pence per mile.
(2) personal telephone expenses (home and mobile) for business use only or
notionally 60% of the total quarterly bill, whichever is greater.
(3) business entertaining
If as part of your performance of your duties it is necessary and reasonable for
you to undertake air travel then where the duration of the flight is in excess
of four hours you may choose to travel Business Class. Where the duration of
the flight is under 4 hours you will normally be expected to travel economy
class, subject to availability and the convenience of travelling arrangements.
SCHEDULE 5 - Benefits in Kind
-----------------------------
Subject to the details and terms of each Scheme and insurance policy conditions
from time to time in force respectively the following may be provided to you, in
the Company's absolute discretion and the Company may exercise its rights to
withdraw the same at any time: -
(1) A Subaru Company Car until the end of its Lease Rental Agreement in
accordance with the terms of the existing Lease Rental Agreement and
thereafter either (1) a Company Car on an approved Lease arrangement
provided that the total monthly lease/rental cost to the Company is no more
than (Pounds)500.00 per month (inclusive of car servicing); or (2) a car
allowance of (Pounds)550.00 per month contribution towards your own
vehicle.
(2) Family Health Care Medical Expenses Insurance Cover for you, your spouse or
partner and immediate family.
(3) Permanent Health Insurance
(4) Life Assurance for up to 4X times salary to your estate in the event of you
death during the period of your employment.
(5) Executive's Key Man insurance cover.
19
<PAGE>
SCHEDULE 6 - Disciplinary Code
------------------------------
The purpose of the Disciplinary Code is to ensure that any alleged failure to
observe the Company' rules and standards of conduct is fairly dealt with and
this code applied to the Executive as it does to all employees of the Company.
A report of all disciplinary action taken under this disciplinary code will be
kept with the relevant Executive's employment file in the Company's records. A
copy of the employment records will be supplied to the Executive on request.
For the purposes of this disciplinary code breaches of the Company's rules are
categorised as follows:
. misconduct;
. gross misconduct;
. incapability
PROCEDURE
---------
The following steps will be taken, as appropriate, in all cases where it is
considered that disciplinary action is necessary. The Board may, in any
individual case, elect to delegate some or all of the procedures listed below to
a committee of the Board.
Investigation
No action will be taken before a proper investigation has been undertaken by the
Board relating to the circumstances of the matter complained of. If appropriate,
the Board may, by written notice, suspend the Executive for a specified period
during which time the investigation will be undertaken. In the case of
suspension the Executive's contract of employment will be deemed to continue
together with the rights specified thereunder including the payment of salary
and other benefits in kind, but during the period of suspension the Executive
will not be entitled to enter upon the Company's premises except at the prior
request or with the prior consent of the Board. Any decision to suspend the
Executive will be notified by the Board and confirmed in writing.
Disciplinary Hearing
If the Board decides to hold a disciplinary hearing the Executive will be given
details of the complaint against him at least 3 working days' before the
hearing. At any disciplinary hearing the Executive will be given an opportunity
to state his case.
Appeal
At any stage of the disciplinary procedure the Executive has a right of appeal
to (1) the Chief Executive Officer, or (2) the Chairman, or (3) an appointed
representative of the Shareholders, where selected by the Chief Executive
Officer, or (4) any other Board Member. The Executive must inform one of the
persons listed in (1) to (4) above in writing of the wish to appeal within 5
working days of the date of the decision, or action of the Board appealed
against.
The Board will conduct an appeal hearing as soon as possible after the Executive
has given notice of the wish to appeal. The Executive will be given an
opportunity to state his case at the appeal hearing.
20
<PAGE>
The decision reached following the appeal hearing will be notified to the
Executive in writing and will be final and binding.
Right of Accompaniment
At all disciplinary and appeal hearings the Executive may choose to be
accompanied by another member of staff or a Trade Union Representative ("the
Companion"). If the Companion chosen by the Executive is not available at the
time proposed for the hearing by the Company, the Executive is entitled to
propose that the hearing takes place at a reasonable alternative time. That
alternative time must not be later than 5 working days (beginning with the first
working day after the date originally proposed by the Company for the hearing)
after the day proposed by the Company. The Company will allow any employee time
off to act as a Companion to another employee or Executive who is required to
attend a disciplinary hearing.
The Companion will be permitted to address the hearing but will not be entitled
to answer questions on the Executive's behalf. However, the Executive may,
during the course of the hearing, ask for the opportunity to confer privately
with his Companion.
MISCONDUCT
----------
Examples of Misconduct
The following are examples of offences which will be treated as misconduct: -
. bad time-keeping;
. unauthorised absence;
. minor damage to Company property;
. minor breach of the Company's rules;
. failure to observe Company procedures;
. minor incidents of abusive behaviour.
These offences are not exclusive or exhaustive any other offences of a similar
or equivalent nature and degree will be dealt with as misconduct.
Procedure Following Misconduct
A first warning will be given by the Board and may be oral or written according
to the circumstances and the severity of the misconduct. In either event the
Executive will be advised that the warning constitutes the first formal stage of
this procedure. A note that the warning has been given and a copy of the
warning, if it is in writing, will be placed with the relevant Executive's
employment file in the Company's records.
If the Executive commits a further offence of misconduct a final warning will be
given and confirmed to the Executive in writing. This warning will state that if
the Executive commits a further offence of misconduct the employment will be
terminated.
If a further offence of misconduct is committed the Executive may be dismissed.
The decision to dismiss and the reason for it will be notified to the Executive
in writing.
21
<PAGE>
GROSS MISCONDUCT
----------------
Examples of Gross Misconduct
The following are examples of offences which will be treated as gross
misconduct: -
. theft of Company or employees' property;
. unauthorised possession of Company or employees' property or use of
facilities;
. unauthorised acceptance of gifts from any customer client or supplier or
prospective customer client or supplier of the Company;
. serious damage to Company property;
. misuse or illegal duplication (in the case of software) or removal of
Company property;
. falsification of records, reports, accounts, expense claims or self-
certification forms;
. refusal to carry out duties or reasonable instructions;
. intoxication by reason of drink or drugs;
. serious breaches of Company rules;
. violent, dangerous or intimidatory conduct;
. sexual, physical, mental or racial harassment.
These examples are not exhaustive or exclusive and any other offences of a
similar or equivalent nature and degree will be dealt with as gross misconduct.
Procedure following Gross Misconduct
Any incident of gross misconduct will result in immediate dismissal of the
person concerned without notice or pay in lieu of notice. The decision to
dismiss and the reason for it will be notified to the Executive in writing.
INCAPABILITY
------------
Examples of Incapability
The following are examples of incapability: -
. poor performance;
. incompetence;
. unsuitability;
. lack of application.
22
<PAGE>
These examples are not exhaustive or exclusive and instances of a similar or
equivalent nature will be dealt with as incapability.
Procedure on Incapability
A first warning will be given by the Board and will be confirmed to the
Executive in writing. This warning will state that the Executive's standard of
work will be reviewed at the end of a period of one month after the date of the
warning. Where appropriate the Executive will be offered additional training in
order to assist the Executive to reach a satisfactory level of competence.
If following the review the Executive's standard of work has not improved to a
satisfactory level a final warning will be given by the Board and confirmed in
writing. The final warning will state that unless the Executive's standard of
work improves within a period of one month after the date of the warning the
employment will be terminated.
REMOVAL OF WARNINGS FROM RECORDS
--------------------------------
Subject to satisfactory performance and conduct, records of any warning given
under these procedures will be removed from the Executive's employment records
after 2 years.
If the Executive's standard of work has still not reached a satisfactory level
by the end of the further period of one month the Executive may be dismissed.
The decision to dismiss and the reason for it will be notified to the Executive
in writing.
23
