EXHIBIT 10.5
Dated 21st June, 2004
ON DEMAND DISTRIBUTION LIMITED
-and-
CHARLES GRIMSDALE
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DIRECTOR'S SERVICE AGREEMENT
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This Agreement made the 21st day of June 2004
BETWEEN
(1) ON DEMAND DISTRIBUTION LIMITED registered in England under number 3935034
whose registered office is at Box Mill, Mill Lane, Box Corsham, Wiltshire,
SN13 8PN ("the Company"), and
(2) CHARLES GRIMSDALE of Little Court, Grib Lane, Blagdon, N Somerset ("the
Director")
WHEREBY IT IS AGREED as follows:-
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
"Associated Company" shall mean any company which is for
the time being the Company's
subsidiary (as defined in Section 736
of the Companies Act 1985) or holding
company (as defined in Section 736 of
the Companies Act 1985) or a
subsidiary (as defined in the said
Section 736) of such holding company
other than the Company itself in any
jurisdiction in any part of the
world;
"the Board" shall mean the board of directors for
the time being of the Company (or any
director or committee of directors
authorised by the board of directors
of the Company).
"Business" shall mean any business of or
commercial activities carried on by
the Company as at the Termination
Date.
"Confidential Information" means any information that is secret
or confidential and relates to or is
connected with the Company or any
business carried on by the Company
from time to time and shall include
but not be limited to any lists or
details of customers or suppliers,
information relating to any process
inventions or Registrable Rights
owned or used by the Company,
computer programs applications or
codes (whether source or object),
software specifications, user and/or
instruction manuals and/or other
documentation relating to such
computer programs or applications,
product lists, price lists, marketing
plans, staff and salary details,
financial and/or management and/or
organisational information of the
Company and any other matter which is
notified to the Director
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during the course of his employment
as being confidential provided that
information which has entered the
public domain (other than as a result
of the Director's breach of this
Agreement) shall cease to be
confidential.
"Group" shall mean and include the Company
and its Associated Companies
including Loudeye Corporation
("Loudeye") from time to time.
"Recognised Investment Exchange" shall have the meaning ascribed to it
in Section 207 of the Financial
Services Act 1986.
"the Termination Date" shall mean the date on which the
Director's employment with the
Company terminates howsoever arising.
1.2 The masculine shall include the feminine and neuter and the singular shall
include the plural and vice versa.
1.3 The clause headings and numbering are for convenience only and shall not
affect the interpretation of this Agreement.
2. APPOINTMENT AND DURATION
2.1 The Director shall serve the Company as Chief Executive Officer (or in
such other capacity commensurate with the Director's status as may from
time to time be agreed) for a period of 12 months from the date that
Loudeye makes an offer to acquire all of the share capital of the Company.
Thereafter, this Agreement shall be extended for a further 12 months after
which period it will automatically terminate, unless the parties agree
otherwise. During the second 12 month term the Director shall carry out
such duties as the Company shall determine in a senior capacity but
without day to day responsibility for operating the Company.
2.2 The Director's date of continuous employment with the Company is from 18th
day of October 2000.
2.3 This Agreement is terminable by not less than six months written notice
given by either party to the other unless terminated earlier in accordance
with this Agreement.
2.4 The appointment shall in any event terminate on the Director's sixty-fifth
birthday.
3. DUTIES AND PLACE OF WORK
3.1 The Director shall (unless prevented by ill health) devote such reasonable
time and attention during normal business hours, which are 9am to 6pm, and
such additional hours as may be reasonably necessary (except during
holidays) entirely to the business of the Company subject to and in
accordance with any general or special directions which may from time to
time be given to him by the Board and will well
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and faithfully perform the same and use his utmost endeavours to promote
the interests of the Company.
3.2 The Director agrees that the limits on weekly working time contained in
the Working Time Regulations 1998 will not apply to this employment.
3.3 The Director shall act as an officer of the Company or any Associated
Company or hold any other appointment or office as nominee or
representative of the Company as the Board shall direct.
3.4 The Director's place of work shall be Broad Quay House, Bristol or such
other place as the Company and the Director shall from time to time agree.
The Director may be required to carry out his duties outside the United
Kingdom for periods in excess of one month.
3.5 The Director shall not during the continuance of this Agreement, except
with the written consent of the Board or as a holder (by way of investment
only) of no more than 3% of the total amount of the stocks, shares or
debentures of any company which are for the time being quoted on a
Recognised Investment Exchange, be:-
3.5.1 in any manner interested in any company or firm carrying on any
business which is in competition with any of the business or
businesses for the time being of the Company.
3.6 Notwithstanding the foregoing, the Company may at any time suspend the
Director from the performance of his duties or exclude him from any or all
of the premises of the Company for the purpose of investigating and
determining any allegation of serious misconduct provided that throughout
any such suspension or exclusion the Director's salary and other benefits
hereunder shall continue to be paid or provided in fully.
3.7 Once notice to terminate employment has been given by the Director or the
Company, the Company:
3.7.1 shall be under no obligation to provide any work or work of any
particular kind for the Director;
3.7.2 may require the Director not to attend work at any or all premises
of the Company;
3.7.3 shall require the Director to comply at all times with Clause 3.5 of
this Agreement; and
3.7.4 may require the Director to comply with any or all of the provisions
of Clause 9.2 of this Agreement
provided that his salary and any other contractual benefits shall not
cease to be payable or provided by reason of the Company exercising its
rights pursuant to this Clause. This Clause 3.7 shall not affect the
general right of the Company to suspend or dismiss the Director.
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4. CONFIDENTIALITY
4.1 The Director shall not at any time whether before or after the termination
of his employment with the Company disclose to any person firm company or
organisation whatsoever nor use print nor publish any Confidential
Information relating to the Company or the business thereof except in the
proper performance of his duties under this Agreement, with the prior
written consent of the Company or as may be required by law.
5. REMUNERATION AND EXPENSES
5.1 Subject to Clause 5.2, as remuneration for his services hereunder the
Company shall pay to the Director a salary at the rate of (pound)125,000
per annum (or such higher salary as may from time to time be agreed
between the Director and the Board) payable by equal monthly instalments
in arrears on the last day of each calendar month such salary to be
inclusive of any sums receivable as director's fees or other emoluments
from the Company.
5.2 In the event that the Director and the Company agree that the Director may
work less than a five day week the remuneration in Clause 5.1 shall be
reduced pro-rata to the number of days per week that it is agreed that the
Director should work.
5.3 In addition to his remuneration under Clause 5.1 the Director may be
entitled to participate from time to time in any bonus arrangements which
the Board shall have determined to establish. The Board may alter or
withdraw any bonus arrangements upon giving notice in writing to the
Director provided that such notice shall not affect any entitlement bonus
which has arisen at the date of the notice. The Board shall notify the
Director of the terms of any bonus scheme in place and of any targets
applicable to his entitlement under such arrangement.
5.4 Except as otherwise provided in this Agreement or as otherwise agreed by
the Company the Director shall not be entitled to any remuneration or
other payment from the Company in respect of any period of employment
during which the Director is absent from work.
5.5 The Company shall, subject to prompt production of receipts, or other
reasonable evidence of expenditure, reimburse all travelling, hotel and
other out of pocket expenses reasonably and properly incurred by the
Director in the performance of his duties hereunder. The Director shall
comply with the Company's procedures and rules in force from time to time
in relation to expenses.
5.6 The Company shall be entitled to recover any debt owed to the Company by
the Director or any other sums lawfully due to the Company from the
Director by means of deductions from the Director's remuneration or other
sums due to the Director during the continuation of or on the termination
of this Agreement, including any payment in lieu of notice or accrued but
untaken holiday entitlement.
5.7 If the Director is entitled under this agreement to participate in any
scheme or plan or to receive any benefit which is covered by a scheme or
plan the Director's entitlement to participate is in accordance with the
terms and conditions of the relevant scheme as they may exist from time to
time (and the Director shall familiarise himself with the
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terms of such scheme), and the Company may vary or withdraw any such
scheme in its absolute discretion. The provision of any scheme or plan
will not affect the Company's ability to terminate the Director's
employment in accordance with this Agreement.
5.8 Where the Director's job title includes the word "Director" the use of
that term in the Director's job title shall not of itself confer the
office of director of the Company or any group company on the Director and
accordingly, the Director shall not enjoy any rights or assume any
obligations arising out of the office of director of the Company or any
group company as the case may be. If the Director is appointed as a
director or secretary from time to time of the Company or any group
company then his appointment as such shall be subject to the Articles of
Association from time to time in force of the Company or of such group
company. The Company or any such group company, as the case may be,
reserves the right on giving written notice to the Director to terminate
any office immediately at any time.
6. HOLIDAYS AND HOLIDAY PAY
6.1 In addition to bank and public holidays the Director shall be entitled to
25 working days paid holiday in each calendar year at such times as may be
approved by the Board. Up to 10 days holiday in each year may be carried
forward to the next year but must be taken before Easter in that year
failing which any days carried over and not used as holiday before Easter
shall be paid in full and shall thereafter be lost as holiday entitlement.
6.2 Upon the termination of this Agreement for whatever reason the Director
shall be entitled to payment in lieu of any outstanding holiday
entitlement which may remain after deducting from accrued holiday
entitlement the amount of holiday already taken in the calendar year in
which the employment ceases. Accrued holiday entitlement shall be
calculated by taking for each complete calendar month of employment during
the calendar year in which the employment ceases one twelfth of the annual
holiday to which the Director would have been entitled for that year with
a fraction of a day being rounded up. For the purpose of calculating
payments in lieu, a day's pay shall be taken to be the Director's basic
annual salary divided by two hundred and sixty.
6.3 The Director shall refund to the Company any holiday pay received in
excess of the amount accrued due up to and including the date of
termination and the Company may deduct any such sum from payments due to
the Director from the Company on termination.
7. SICKNESS AND SICK PAY
7.1 If the Director shall at any time be prevented by illness from performing
his duties under this Agreement he shall on demand furnish the Board with
evidence of such incapacity and the cause thereof and if the Board is
satisfied with such evidence he shall during such incapacity not exceeding
an aggregate of 120 working days in any rolling period of 12 months be
entitled (as long as this Agreement has not been terminated) (subject to
clause 7.3) to receive his full remuneration less the amount of any
statutory sick pay or other benefit to which the Director is entitled
under social security legislation for the time being in force.
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7.2 If the Director shall at any time be prevented by illness from performing
his duties under this Agreement for more than 120 working days in any
rolling period of 12 months the Company will make such payment of
statutory sick pay as may be due to the Director. The Company may at the
absolute discretion of the Board make additional payments to the Director
during such periods of absence.
7.3 If the incapacity referred to in Clause 7.1 results from an accident
injury or illness in respect of which damages may be recoverable from a
third party then:-
7.3.1 the Director shall not be entitled to any remuneration during such
incapacity but the Company may having regard to all the
circumstances of the case continue payment to the Director of
amounts not exceeding the payment during incapacity to which the
Director would otherwise be entitled;
7.3.2 the Director shall notify the Company immediately and shall at the
expense of the Company assist the Company in taking any steps or
proceedings in the name of the Director to recover damages in
respect of such incapacity; and
7.3.3 the Director undertakes to reimburse to the Company out of any
damages recovered the total amount of such payments or such
proportion thereof as the Board may determine having regard to the
amount or proportion of the damages recovered which is attributable
to loss of earnings.
7.4 If required to do so for the proper performance of his duties the Director
will at the expense of the Company undergo a medical examination by a
medical practitioner appointed by the Company for the purpose. The
Director consents to the disclosure to the Company of any medical report
diagnosis prognosis or result of any medical test made or produced in
connection with a medical examination required under this Clause and the
Company shall be entitled to discuss the examination and all matters
arising therefrom with the practitioner who carried out such examinations.
8. PENSION AND OTHER BENEFITS
8.1 The Company shall contribute 5% of such part of the Director's
remuneration as does not exceed the allowable maximum as defined in
Section 640A(2) of the Income and Corporation Taxes Act 1988 to a personal
pension scheme nominated by the Director which is approved by the Board of
the Inland Revenue under the said Act.
8.2 There is not a contracting out certificate in force in respect of the
Director's employment.
8.3 The Company shall offer to the Director membership of an Inland Revenue
approved life assurance scheme providing benefits on death in service of 4
times the Director's basic remuneration in accordance with the rules and
terms of such life assurance scheme as may be in force in relation to the
Director from time to time.
9. INVENTIONS
9.1 For the purpose of this Clause 9:
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"Inventions" means any inventions, developments, secret formulae,
processes, notations, improvements, trade marks, service
marks, logos, trade names, copyrights, copyright works,
moral rights, semi-conductor topography rights, designs,
know-how, get-up, plans, drawings, computer codes
(whether source or object), computer programs or
applications (whether or not downloadable), software
specifications, Websites, compilations, reports,
information, databases, models or any other
specifications or devices of whatever nature, which
relate to the business and/or products of the Company or
Loudeye and are invented, originated, composed, written,
discovered, developed, created, generated, devised or
otherwise acquired by the Director on whatever media
during the term of this employment with the Company
under this Agreement (whether in the course of his
employment or otherwise and whether alone or jointly
with or in conjunction with any other person or other
persons) PROVIDED THAT any Invention to which Section 39
Patents Act 1977 applies shall only be an invention
within this definition if the same:
9.1.1 was made in the course of the normal duties of the Director, or in
the course of duties falling outside his normal duties, but
specifically assigned to him by the Board, and in either case it was
reasonable to expect that the same might result from the execution
by the Director of his duties to the Company pursuant to this
Agreement; or
9.1.2 was made in the course of the Director's duties and at the time of
making the same, because of the nature of his duties and the
particular responsibilities arising from the nature of his duties,
he had a special obligation to further the interests of the Company.
"Registrable Rights" means patents, trade marks and service marks
(whether registered or unregistered), registered
designs, pending applications for any of those
rights, accrued goodwill in any trade business or
service names (whether registered or
unregistered), rights in designs, copyrights,
database rights, utility models and all other
similar or equivalent industrial, intellectual or
commercial rights or property subsisting under the
laws of each and every jurisdiction throughout the
world whether registered or not and whether
vested, contingent or future and all reversions,
renewals and extensions of any of the foregoing
and all rights under licences, consents, orders,
statutes or otherwise in relation to any of the
foregoing.
9.2 The Director hereby agrees that:
9.2.1 the entire legal and beneficial interest of the Director in any
Inventions or Registrable Rights shall become the absolute
beneficial property of the Company without any payment to the
Director (except to the extent provided in Section 40 Patents Act
1977) other than reimbursement of out of pocket expenses and the
Director hereby assigns with full title guarantee by way of future
assignment to the Company the whole of his interest in any
Inventions
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and in any Registrable Rights in any such Inventions or Registrable
Rights throughout the world including any extensions, renewals or
revivals and the right to sue for damages;
9.2.2 the Director shall promptly communicate to the Company full
particulars of all Inventions and Registrable Rights and, if any of
the Inventions is capable of being protected by any Registrable
Rights, the Company shall determine whether and where applications
shall be made for such Registrable Rights in respect of the same and
the Director shall, until such rights are fully and absolutely
vested in the Company, hold the Inventions in trust for the Company
and shall not disclose any details of any such Invention or
Registrable Rights to any third party;
9.2.3 if the know-how, technique, process, improvement, invention or
discovery is not an invention belonging to the Company within the
meaning of Clause 9.1, the Company shall treat all information
disclosed to it by the Director as confidential property of the
Director;
9.2.4 all such Registrable Rights shall be applied for and taken out at
the Company's expenses and in the name of the Company or if the
Company shall require in the joint names of the Director and the
Company and the Director shall concur in applying for the same and
shall at the Company's expense prepare all such drawings and
specifications models and designs as may be necessary and give every
reasonable assistance in his power to procure the grant of such
Registrable Rights to the Company;
9.2.5 the Director will, at the reasonable request and expense of the
Company, do all acts and execute all documents which may be
necessary to give effect to this Clause 9 including, without
limitation, entering into any action, claim or proceeding and should
the Director be unavailable to do so, the Director irrevocably
appoints the Company to be his attorney in his name and on his
behalf to sign execute or do any such instrument or thing and
generally to use his name for the purpose of giving to the Company
(or its nominee) the full benefit of the provisions of this Clause
9.2 and a certificate in writing signed by any director or the
secretary of the Company in favour of any third party stating that
any instrument or act falls within the authority conferred by this
Clause 9.2.5 shall be conclusive evidence that such is the case; and
9.2.6 the Director waives all moral rights arising from any Inventions or
Registrable Rights, so far as the Director may lawfully do so, in
favour of the Company.
10. TERMINATION
10.1 The Company may by notice in writing to the Director terminate forthwith
the employment of the Director if the Director:
10.1.1 in the reasonable opinion of the Board seriously neglects or
refuses to carry out the duties required of him hereunder or is
guilty of any other wilful breach or non-observance of any of the
terms and conditions of this Agreement after being notified in
writing of such neglect and having failed to remedy such neglect
within 28 days of being requested to do so;
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10.1.2 becomes bankrupt, or is the subject of a receiving order or enters
into any composition or deed of arrangement with creditors;
10.1.3 becomes of unsound mind;
10.1.4 becomes disqualified from acting as a director by reason of any
provision of the Companies Act 1985, the Company Directors
Disqualification Act 1986 or any other statutory provision;
10.1.5 is convicted of any criminal offence other than an offence which
in the reasonable opinion of the Board adversely affects neither
the reputation of any company in the Group nor the Director's
ability to fulfil his duties adequately; or
10.1.6 is the subject of or causes the Company to be the subject of a
penalty or reprimand imposed by any regulatory authority by which
the Company is governed or to which its activities are subject.
10.2 In the event that the Executive is absent due to ill health or accident
for a consecutive period of 120 working days, the Company may terminate
the employment of the Executive by giving three month's written notice.
10.3 Upon either party giving to the other notice of termination in accordance
with Clause 2.1 of this Agreement or upon the termination of the Agreement
for whatever reason the Director shall:
10.3.1 if so requested by the Board resign from all or any offices he may
hold as a director of the Company or any company in the Group and
in the event of his failure to do so the Company or such group
company is hereby irrevocably authorised to appoint some person in
his name and on his behalf to execute any documents and to do all
things requisite to give effect to such resignation;
10.3.2 deliver up any or all documents and other property of or relating
to the Group in his possession or under his control and shall not
make or retain any copy or duplicate of any part thereof and shall
not make or retain any notes or extracts therefrom.
10.4 The Company may in its absolute discretion terminate this Agreement with
immediate effect by paying to the Director a sum equivalent to his normal
basic salary and any accrued bonus and the replacement value to the
Director of all other benefits due to the Director under this Agreement
(which shall cease to be provided with immediate effect) in respect of a
period equal to the period of notice to which the Director would otherwise
have been entitled under Clause 2.1 of this Agreement. The Company shall
deduct from any sum paid under this Clause 10.4 income tax and national
insurance contributions and any sums owed to the Company by the Director.
11. RESTRICTIONS
For the purposes of this Clause 11:
"Relevant Period" means the lesser of:
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(a) 12 months from the Termination Date;
(b) 12 months from the Termination Date less the number of days the
Company has, pursuant to Clause 3.7, required the Director not to
attend work or perform his duties.
11.1 The Director hereby acknowledges that the Company's business is a highly
specialised and competitive business and that the Director will have
access to and an intimate knowledge of the Company's Confidential
Information and that the disclosure of any Confidential Information to
actual or potential competitors of the Company or the use of any
Confidential Information by the Director either alone or with other
persons would place the Company at a serious competitive disadvantage and
would do material damage, financial or otherwise, to its legitimate
business interests. The Director further acknowledges and agrees that if
he was entitled to compete with the Company immediately after the
termination of this Agreement in any capacity the Company would be at a
serious disadvantage and such unfair competition would do material damage,
financial or otherwise, to its legitimate business interests. Therefore,
the Director acknowledges and agrees that the restrictions set out in
Clause 11 are fair and reasonable in the circumstances for the protection
of the Company's legitimate business interests.
11.2 The Director covenants that he shall not at any time during his employment
or for the Relevant Period without the prior written consent of the
Company either alone or jointly with or as employee, manager, officer,
director, agent, consultant, contractor or partner of any other person,
firm, company or organisation directly or indirectly:
11.2.1 be employed, engaged, concerned or interested in any business or
activity throughout the world which competes directly with any
Business with which the Director had been materially concerned in
the performance of his duties under this Agreement during the 12
months immediately preceding the Termination Date;
11.2.2 in relation to any Business and in competition with the Company
canvass, solicit or endeavour to take away from the Company the
business or custom of any person, firm, company or organisation
who or which was, at the Termination Date or at any time during
the 12 months immediately preceding the Termination Date, a
customer or client of the Company with whom or which the Director
shall have come into contact in the performance of his duties
under this Agreement during the 12 months immediately preceding
the Termination Date;
11.2.3 in competition with the Company solicit the services of any
person, firm, company or organisation who or which at the
Termination Date or during the 12 months immediately preceding the
Termination Date was a supplier, agent, contractor or consultant
of the Company which whom or which the Director had come into
contact in the performance of his duties under this Agreement
during the 12 months immediately preceding the Termination Date;
nor
11.2.4 solicit or endeavour to entice away from the Company any person
who was on the Termination Date a director or a senior employee of
the Company.
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11.3 The Director acknowledges and agrees that the restrictions set out in
Clause 11.2 are fair and reasonable in the circumstances and that if any
one or more or any part of such restrictions shall be rendered or judged
invalid or unenforceable such restriction or part shall be deemed to be
severed from this Agreement and such invalidity or unenforceability shall
not in any way affect the validity or enforceability of the remaining
restrictions.
11.4 Following termination of this Agreement the Director shall not falsely
represent himself or permit himself to be represented as being in any way
connected with or interested in the business of the Company other than as
a shareholder.
11.5 The Director hereby acknowledges that the restrictions contained in Clause
11.2 shall operate for the benefit of the business carried on by the
Company and such restrictions shall be enforceable against the Director by
the Company.
12. NOTICES
Notices may be given by either party to the other by personal service or
by letter sent by recorded delivery post or by telex or facsimile
transmission or other permanent written form addressed in the case of the
Company to its registered office for the time being or in the case of the
Director to his last known home address. Any notice given by post shall be
deemed to have delivered 48 hours after posting. Any notice given by telex
or facsimile transmission shall be deemed to have been delivered at the
time specified on the sender's transmission records.
13. GENERAL
13.1 If the employment of the Director hereunder shall be terminated by reason
of the liquidation of the Company for the purpose of reconstruction or
amalgamation and he shall be offered employment with any concern or
undertaking resulting from such reconstruction or amalgamation on terms
and conditions not less favourable than the terms of this Agreement or if
his employment hereunder shall be terminated by the Company for any other
reason and he shall be offered employment with any Associated Company on
terms and conditions not less favourable than the terms of this Agreement
then the Director shall have no claim against the Company in respect of
the termination of his employment under this Agreement.
13.2 This Agreement contains the terms and conditions of the employment as at
the date hereof.
13.3 This Agreement supersedes any former or subsisting contract of employment
or contract for services between the Company and the Director which shall
cease to have effect on and from the date of this Agreement and sets out
the entire agreement between the parties at the date hereof in relation to
the employment of the Director by the Company.
13.4 The Director acknowledges and agrees that the information relating to him
which is governed by the Data Protection Act 1984 and/or the Data
Protection Act 1998 may be held and processed by the Company for all
matters and purposes in connection with the Director's employment and the
business of the Company and may be
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transferred to third parties and to countries outside the European
Economic Area for such purposes.
13.5 A person who is not a party to this Agreement has no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any term of this
Agreement but this does not affect any right or remedy of the third party
which exists or is available apart from this Act.
14. COLLECTIVE AGREEMENTS
There are no collective agreements in force affecting the Director's terms
and conditions of employment.
15. GRIEVANCE AND DISCIPLINARY PROCEDURES
15.1 The Director shall be entitled to raise any grievance concerning his
employment with the Board in writing.
15.2 The Company has no formal disciplinary procedure applicable to the
Director.
IN WITNESS whereof these presents have been entered into as a deed the day and
year first above written
Executed and delivered as a DEED
for and on behalf of /s/ John Grinham
On Demand Distribution Limited ----------------
Director
/s/ Tiff Pike
-------------
Director/Company Secretary
Executed and delivered as a DEED by the
said Charles Grimsdale /s/ Charles Grimsdale
---------------------------
in the presence of:- /s/ Margaret Davis
---------------------------
Signature of Witness
---------------------------
M. Davis
Print Name of Witness
Print Address of Witness
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