SERVICE AGREEMENT Exhibit 10.44
Dated 19th, July 1995
PARTIES
(1) INDEX FOREX LIMITED whose registered office is at 11 Old Jewry, London
EC2R 8DU (the "Company"); and
(2) MR. GRAHAM WELLESLEY of 38 Santos Road, London SW18 1MS (the
"Executive") SIMON DRABBLE, LORENZO NALDINI
1. INTERPRETATION
In this Agreement:-
(a) the "Board" means the board of directors of the Company;
(b) the "Commencement Date" means the ___ day of
_______________ 1995;
(c) the "Group" means:
(i) the Company;
(ii) the Company's holding company (if any);
(iii)any other subsidiary of the Company or the Company's holding
Company; and
(iv) any other company in which the Company is interested and whose
name is notified to the Executive by the Company as being a
member of the Group
and (where the context so admits) includes any member of the Group.
For this purpose "holding company" and "subsidiary' have the meanings
given to them by section 736, 736A and 736B of the companies Act 1985;
(d) "Net Income of the Company" means 50% (fifty per cent) of the gross
income of the Company resulting from business undertaken by the Team
(including introductory commissions from Index Futures Group, Inc.)
less 50% (fifty percent) of the costs incurred by the Company in
supporting the Team including, for the avoidance of doubt, the items
and the indicative costs set out at Appendix 1 and trading errors and
unpaid debts of the Team's clients.
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(e) the "Team" means Simon Drabble, Graham Wellesley and Lorenzo Naldini
and such other persons as may be agreed from time to time by the
parties.
(f) the "Termination Date" means the date on which the Executive's
employment under this Agreement ceases;
(g) reference to any statutory provision includes a reference to that
provision as amended, extended or reenacted and to any statutory
replacement thereof (either before or after the date of this
Agreement).
2. APPOINTMENT, TERM AND CONTINUITY
(a) Subject to the provisions of this Agreement, the Executive is
appointed and shall serve the Company as a Director from the
Commencement Date until his employment is terminated by either party
giving to the other not less than (three months') notice expiring at
any time.
(b) The Executive's period of continuous employment with the Company for
the purposes of the Employment Protection (Consolidation) Act 1978
commenced on _________________ 1995.
3. REMUNERATION
(a) The Executive shall be entitled to a commission share of the Net
Income of the Company, his proportion of such commission to be
determined by agreement with the other members of the Team and
notified to the Company in writing.
(b) The Company shall pay the Executive as draw against commissions to be
earned under sub-clause (a) above at the rate of US$8,565 per month or
at such other rate as the Board may from time to time decide. Such
draw shall be paid monthly in arrears on the last working day in every
month and shall be repayable by deduction from the commission share
due in future quarters to the Executive pursuant to (C) below if the
commission earned by the Team under (a) above are less than US$25,695
in aggregate in any month or on average over any quarterly period
Provided That the draw against commissions paid to the executive in
the first three months of his employment shall not be repayable if the
commissions earned by the Team under (a) above are less than US$25,695
in aggregate in any of those three months or on average over such
period.
(C) 50% (fifty per cent) of the commission share of the Executive under
(a) above shall be payable quarterly in arrears after deduction of any
draw against commission
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under (b) above with the balance of such commission share being
payable at the Company's financial year end.
4. EXPENSES
The Company shall reimburse the Executive all reasonable out of pocket
expenses properly incurred by him on the Company's business and evidenced
to the Company's reasonable satisfaction provided that such expenses shall
not exceed such amounts as may be agreed from time to time unless approved
in advance.
5. DUTIES
(a) The Executive shall act as a broker in spot and forward foreign
exchange in the inter-bank market and as a introducer of clients to
other Group companies in relation to on-exchange futures and options
broking and clearing business. The Executive shall also perform such
other duties and exercises such powers as are consistent with his
appointment and as are from time to time given to him by the Board and
shall use his best endeavors to further the interests of the Group.
The Executive shall comply with all policies and directives of the
Board and the rules of the Securities and Futures Authority Limited
("SFA") and in particular personal account dealing and other
regulatory notices and requirements in compliance with the SFA rules.
(b) Without prejudice to sub-clause (a) the Executive shall at all times
keep the Board fully informed of his conduct of his duties on behalf
of the Company and, as the case may be, of any other member of the
Group when appropriate and shall promptly provide such information and
explanations as may be requested from time to time by the Board.
(c) The Executive's normal working hours shall be (7:30 a.m. to 5:30 p.m.)
on Mondays to Fridays inclusive with one hour for lunch and he shall
devote such further time as may be necessary for the proper
performance of his duties. Pressure of work may well necessitate that
longer hours are worked.
(d) The company may require the Executive to perform his duties anywhere
within or outside the United Kingdom in the ordinary course of his
duties.
(e) During his employment the Executive shall not, except with the prior
written consent of the Board, be directly or indirectly engaged,
concerned or interested in any other business or occupation provided
that he may hold and/or be interested in (for the purpose of
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investment only and not exceeding one per cent of the issued share
capital of any company) any securities listed on a recognized stock
exchange or dealt in on any public securities market.
(f) There shall be no obligation on the Company to vest in or assign to
the Executive any powers or duties or to provide any work for him, and
the Company may at any time or from time to time during any period of
notice as specified in clause 2(a) (or in circumstances in which it
reasonably believes that the Executive is guilty of misconduct or in
breach of this Agreement, in order that the circumstances giving rise
to that belief may be investigated) suspend the executive from the
performance of his duties or exclude him from any premises of the
Company and need not give any reason for so doing. During such
suspension or exclusion the Company may require the Executive to be
available by telephone during normal working hours. Salary and other
benefits will not cease to be payable by reason only of such
suspension or exclusion.
6. HOLIDAYS
(a) In addition to public holidays the Executive shall be entitled to (25)
working days' paid holiday in each calendar year which shall be taken
at such time or times as may be agreed between the Executive and the
Board. Holiday entitlement during each of the first and last calendar
years of employment shall be in direct proportion (to the nearest day)
to the length of the Executive's service during such year. The
Executive shall have no claim against the Company if he does not take
his full holiday entitlement and holiday not taken in one calendar
year may not be carried forward in whole or in part to a subsequent
calendar year.
(b) Reasonable notice of proposed holiday dates must be given by the
Executive and the dates agreed with the Board. No holiday may be
taken by the Executive after notice to terminate the Executive's
employment has been given. On termination of his employment the
Executive shall be entitled to remuneration in lieu of any outstanding
holiday entitlement and the Company shall have the right to make an
appropriate deduction from his final remuneration in respect of any
excess holiday taken by the Executive.
(c) The retirement age of the Executive shall be 65.
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7. SECRECY
(a) The Executive shall not (except in the proper course of his duties
hereunder), either before or after the Termination Date, make use of
or divulge to any person, and shall use his best endeavors to prevent
the publication or disclosure of, any trade secret or any other
private, confidential or secret information concerning the business or
finances of the Group or any of its dealings, transaction or affairs
or concerning any third party with which the Group has dealt and all
notes, memoranda and other records of such trade secrets or
information made or received by the Executive during the course of his
employment hereunder shall be the property of the Company and shall be
surrendered by him to someone duly authorized on their behalf at the
termination of his employment with the Company or at the request of
the Board at any time during the course of his employment. In this
Agreement confidential information includes, but is not limited to,
the following:
(i) information relating to the Group's clients, prospective clients,
persons to whom the Group has made presentations and for whom
quotations have been prepared, and the requirements of such
persons in terms of the Group's business or services;
(ii) information relating to the Group's suppliers, agents and
distributors;
(iii)information relating to intellectual property in which the Group
has an interest, the marketing of the Group's products and
services and the fee arrangements in force between the Group and
its clients.
(b) Whenever requested to do so by the Company, and in any event upon
termination of his employment with the Company, the Executive shall
hand over to the Company all models, equipment, documents and records
(including all computer software and programs), and other things in
his possession or control which relate to the business or affairs of
the Group or of any third party with which the group has had dealings
and no copies shall be retained by him. As between the company and
the Executive all such documents and records are deemed to be the
property of the Company.
(c) The restrictions in sub-clause (a) shall cease to apply to information
or knowledge which may (otherwise than through the Executive's fault)
become available to the public.
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(d) These obligations are in addition to and not in submission for any
obligations imposed upon the Executive by law or otherwise.
8. RESTRICTIONS
(a) The Executive shall not at any time during a period of six months
after the Termination Date and in material competition with any
business carried on by the Company or any other member of the Group at
the Termination Date solicit the custom of or deal with any person,
firm or company which was a client of or a prospective client of
material importance to the Company or any other member of the Group
and with whom the Executive had communicated or associated to any
material extent in the course of his employment during the twelve
months preceding the Termination Date unless the Company ceases to
carry on inter-bank foreign business.
(b) The Executive shall not at any time after the Termination Date
represent himself or cause or permit himself to be represented as
being in any way connected with the Group.
(c) The Executive shall be bound by the following restrictions in respect
of any employee of the Group who is an employee of the Company or any
other member of the Group at the Termination Date or at any time
during the preceding twelve months in an executive, managerial,
technical or sales capacity-
(i) the Executive shall not at any time during a period of six months
from the Termination Date employ or offer to any such employee
any alternative employment or attempt in any way to persuade any
such employee to enter any alternative employment or to leave the
employment of the Group.
(ii) the Executive shall during a period of six months from the
Termination Date use his best endeavors to prevent any person,
firm or company with whom he may be engaged or connected from
employing or offering to any such employee any alternative
employment or from attempting in any way to persuade any such
employee to enter into any alternative employment or to leave the
employment of the Group.
(d) The Executive acknowledges that in all the circumstances of this
Agreement (including, but not limited to, the remuneration payable to
the Executive hereunder) the restrictions and provisions herein
contained are reasonable and necessary for the
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protection of the Group's legitimate business interests and he further
acknowledges that, having regard to those circumstances, such
restrictions and provisions do not work harshly on him.
(e) Notwithstanding sub-clause (d), the parties agree that the covenants
set out in this clause shall be separate and severable and enforceable
accordingly and, if any of the above periods of six months following
the Termination Date referred to in sub-clauses (a), (b) and (c) shall
be adjudged to go beyond what is reasonable in all the circumstances
for the protection of the Group, a period or periods of three months
following the termination Date shall be submitted thereof.
(f) The undertakings in this clause shall cover all actions by the
Executive in whatever capacity and whether directly or indirectly
through or with any third party, agent, company, partnership,
employee, employer, associate (within the meaning of section 435 of
the Insolvency Act 1985) or trust which if done by him personally
would breach the provisions of this clause.
(g) These obligations are in addition to and not in substitution for any
obligations imposed upon the Executive by law or otherwise.
9. INJUNCTIVE RELIEF FOR SECRECY AND RESTRICTIONS
The Executive acknowledges that the Company will have no adequate remedy at
law if the Executive violates the terms of the provisions of either of
clauses 7 ("Secrecy") or 8 ("Restrictions") above. In the event of any
such violation, the Company shall have the right, in addition to and
without prejudice to any other rights it may have, to obtain in any court
of competent jurisdiction injunctive relief of or specific performance to
restrain any breach or threatened breach of this Agreement.
10. DISCIPLINARY AND GRIEVANCE PROCEDURE
In the execution of his duties the Executive shall conduct
himself in a manner befitting his appointment hereunder. If the Executive
is dissatisfied with any disciplinary decision or wishes to seek redress
for any grievance relating to his employment he shall refer it to Charles
Romilly whose decision shall be final.
11. TERMINATION
(a) The Executives' employment may be terminated by the Company forthwith
by notice if:-
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(i) he makes any arrangement or composition with his creditors generally
or there are grounds under section 267 if the Insolvency Act 1986 for
the presentation of a credit's petition for a bankruptcy order to be
made against him or an interim receiver of his property is appointed
under section 286 of that Act;
(ii) he is convicted of a criminal offense as a result of which he is
sentenced to a term of imprisonment;
(iii)he commits any serious breach of his obligations to the Company;
(iv) having committed any breach of his obligations to the Company he fails
to rectify such breach (if reasonably capable of rectification) or
commits a further or continuing breach after warning by the Company;
(v) his conduct is in the opinion of the Board prejudicial to the
interests of the Group. The Board may take into account a conviction
for any criminal offense not covered by sub-clause (ii) ;
(vi) being a director of any company in the Group he resigns his
directorship or become prohibited by law from being a director;
(vii)he becomes of unsound mind or becomes a patient under the Mental
Health Act 1983;
(viii)by reason of ill health or incapacity he is prevented from performing
his duties for periods which have exceeded (or in the reasonable
estimation of the Board are likely to exceed) in aggregate twenty-six
weeks in any twelve month period.
(xi) he ceases to be authorised to conduct investment business in the
United Kingdom.
(b) Upon termination of his employment howsoever arising the Executive
shall resign without claim for compensation from all directorships and
other offices within the Group and should he fail to do so the Company
is hereby irrevocably authorized by the Executive to appoint some
person in his name and on his behalf as his attorney to sign any
documents and do all things necessary or requisite to give effect
thereto.
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(c) Upon the termination of the Executive's employment for whatever reason
the Company will be entitled to deduct from any payments then due or
becoming due to the Executive (whether in respect of any period before
such termination or not) any moneys which may then be or become due or
may become due thereafter from the Executive to the Company or any
other member of the Group.
(d) If the Executive's employment shall be terminated by reason only of
the liquidation of the Company for the purpose of amalgamation or
reconstruction and the Executive shall be offered employment with any
concern or undertaking resulting from such amalgamation or
reconstruction on terms no less favorable than the terms of this
Agreement the Executive shall have no claim against the Company in
respect of the termination of his employment hereunder.
12. NOTICES
All notices under this Agreement shall be in writing. Notices to the
Company may be given by the Executive either personally to Charles Romilly
or by prepaid first class letter, facsimile or telex addressed to the
Company at its registered office for the time being. Notices to the
Executive may be given by the Company either personally or by prepaid first
class letter, facsimile or telex addressed to the Executive at his last
known address or his place of work. Any such notice unless given
personally shall be deemed, if given by letter, to have been served 48
hours from the time of posting and in proving service by post it shall be
sufficient to show that the letter was properly addressed and posted in
accordance with the provisions of this clause and, if given by facsimile or
telex, to have been served at the time it is transmitted if transmitted
between 9:00 a.m. and 5:30 p.m. London time on a business day or, if not so
transmitted, at 9:00 a.m. London time on the first business day thereafter.
In proving service by facsimile or telex it shall be sufficient to show
that the transmission was properly made and that the transmitting device
was connected to a device with a facsimile or telex telephone number
reasonably believed to be that of the party to be served.
13f PREVIOUS AGREEMENTS
(a) This Agreement supersedes any previous agreement (whether written,
oral or implied) between any member of the Group and the Executive
relating to his employment which, without prejudice to his right to
receive sums accrued due thereunder, shall be void from the
Commencement Date.
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(b) The Executive acknowledges and warrants that there are no agreements
or arrangements, whether oral, written or implied, between any member
of the Group and the Executive other than those expressly set out in
this Agreement and that he is not entering into this Agreement in
reliance on any representation not expressly set out herein.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
English law and the Executive hereby irrevocably agrees for the exclusive
benefit of the Company that the English Courts are to have jurisdiction to
settle any disputes which may arise out of or in connection with this
Agreement.
EXECUTED (in the case of the Executive as a deed) on the date appearing at the
beginning of this document.
SIGNED by
the duly authorized representative of
THE COMPANY in the presence of:
Witness:
SIGNED AND DELIVERED as a deed by
THE EXECUTIVE in the presence of:
Witness:
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Appendix 2
Agreed Fixed Overheads
Staff Costs
Graham Wellesley $ 8,565
Simon Drabble 8,565
Lorenzo Naldini 8,565
Alex (Assistant) 4,280
Settlements 5,900
Treasurer 5,900
Inputter 1,000
42,775
Medical Insurance ?
Subsistence
Recruitment & Training 300
300
Marketing
Advertising 2,500
Printing ?
Entertaining 1,500
Travel 1,500
Postage & Stationary 1,500
7,000
IT
Data Processing 3,000
Information Services 8,250 2 Reuters 2000 &
2 Reuters 2000 Dealers
Depreciation/Fixed writeoff ?
Tullett & Tokyo Broker Box 4,500
15,750
Premises Cost
Rent, Rates, Services etc. 4,700 (1,020 Square feet @ 37
4,700 Lombard Street)
Other Expenses
Subscriptions 410 (SFA)
Telecoms 2,000
Audit & Accounting 1,000
Legal & professional 2,000
Insurance 500
Bank Charges 1,000
Sundries 1,000
Irrevocable VAT ?
7,910
Errors ?
Cost of Capital 20,400
Total Overhead 98,635
Less draws (25,695)
73,140
Bonus escrow $124,530
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