Exhibit 10.46
SERVICE AGREEMENT
Dated November 13, 1995
PARTIES
(1) INDEX FX LIMITED whose registered office is at 137 Lombard Street,
London, EC3V 9BQ (the "Company"); and
(2) MR GRAHAM WELLESLEY of 38 Santos Road, London SW18 1MS (the "Executive").
1. INTERPRETATION
In this Agreement:--
(a) the "Board" means the board of directors of the Company;
(b) the "Commencement Date" means the 13th day of November 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 sections 736, 736A and 736B of the Companies Act 1985;
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(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.
(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 re-enacted 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
13 November 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 a 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
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repayable by deduction from the commission share due in future quarters to
the Executive pursuant to (c) below if the commissions 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 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 an 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
exercise 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 endeavours 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.
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(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 investment only and not
exceeding one per cent. of the issued share capital of any company) any
securities listed on a recognised stock exchange or dealt in on any other
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.
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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 for the Executive shall be 65.
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 endeavours 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, transactions 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
authorised 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:--
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(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 generally.
(d) These obligations are in addition to and not in substitution 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.
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(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 endeavours 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 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 substituted therefor.
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(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 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 Executive's employment may be terminated by the Company forthwith by
notice if:--
(i) he makes any arrangement or composition with his creditors generally
or there are grounds under section 267 of the Insolvency Act 1986 for
the presentation of a creditor'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:
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(ii) he is convicted of a criminal offence 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 offence not covered by sub-clause (ii);
(vi) being a director of any company in the Group he resigns his
directorship or becomes 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;
(ix) 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 authorised 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 favourable 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 am and 5.30 pm London
time on a business day or, if not so transmitted, at 9.00 am 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.
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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.
(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 /s/ GRAHAM WELLESLEY
the duly authorised representative of
THE COMPANY in the presence of:--
Witness: /s/ CHARLES ROMILLY
/s/ GRAHAM WELLESLEY
SIGNED AND DELIVERED as a deed
by THE EXECUTIVE in the presence of:--
Witness: /s/ CHARLES ROMILLY
0523/MWC
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