Exhibit 4.23
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(1) FUTUREMEDIA PLC
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(2) MARK WILSHER
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SERVICE AGREEMENT
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THIS AGREEMENT is made on 28 February 2005.
BETWEEN:
(1) FUTUREMEDIA PLC, incorporated in England and Wales with registered number
1616681 and whose registered office is situate at Nile House, Nile Street,
Brighton BN1 1HW (the "Company");
(2) MARK WILSHER of ___________________________________________ ("Executive").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this agreement and the schedules to this agreement the following
words shall have the meanings ascribed below:
"Appointment" means the employment of the Executive under the terms of
this Agreement;
"Associated Company" means in relation to a company any other company in
which the company or any Holding Company of it is directly or indirectly
beneficially interested in 20% or more of that other company's issued
ordinary share capital;
"Board" or "Board of Directors" means board of directors of the Company
from time to time;
"Business" means providing e-learning solutions to both the public and
private sector and any other business carried on by the Company and any
Group company from time to time;
"Group" means the Company and all companies which are for the time being
either a Holding Company of the Company or a Subsidiary or Associated
Company of either the Company or any such Holding Company;
"Base Salary" means the salary payable to the Executive under this
Agreement from time to time;
"Subsidiary Company" and "Holding Company" shall have the meanings
ascribed to them by the Companies Act 1985.
1.2 A clause or schedule is a reference to a clause or schedule to this
agreement.
2. APPOINTMENT
2.1 The Company shall employ the Executive and the Executive shall be
employed by the Company in the capacity of Chief Financial Officer
or in such other capacity as the Company and the Executive shall
agree from time to time (the "Appointment").
3. TERM
3.1 The Appointment under this Agreement shall commence on 1 March 2005
(the "Commencement Date") and, unless earlier terminated in
accordance with the terms of this agreement, shall be for a fixed
term of one year ("Term") expiring on the first anniversary of this
Agreement ("Term Date") and shall then continue until terminated by
either party giving the other not less than six months' written
notice.
3.2 The Executive's continuous period of employment will begin on the
Commencement Date.
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4. DUTIES
4.1 During the Appointment the Executive shall be responsible directly
to the Chief Executive Officer of the Company and shall perform such
duties and exercise such powers and functions as may from time to
time be reasonably assigned to or vested in him by the Chief
Executive Officer consistent with the usual duties of a Chief
Financial Officer (or such other capacity as the Company and the
Executive shall agree from time to time). The Executive shall unless
prevented by ill health, devote the whole of his business time and
attention, endeavours and abilities to promoting the interests of
the Company and shall not engage in any activity which may be or may
become harmful to or contrary to the interests of the Company. The
Executive shall promote the interests of the Company and shall obey
all and any lawful and reasonable directions of the Chie Executive
Officer and the Board.
4.2 During the Appointment the Executive shall not without the written
consent of the Board (such consent not to be unreasonably withheld):
4.2.1 be engaged or interested either directly or indirectly in any
capacity in any trade business or occupation whatsoever other
than the Business of the Company or the Group provided that
the Executive shall not be prohibited from (a) holding whether
directly or indirectly up to 3% of the shares or stock of any
class of any company listed on a recognised stock exchange or
the Alternative Investment Market or (b) serving in a
non-executive capacity on the board of directors of one or
more other companies (provided that such activity does not
interfere with the performance of the Executive's obligations
under this Agreement); or
4.2.2 pledge the credit of the Company or any Group company other
than in the day to day running of the Business or enter into
any contracts or obligations involving the Company or any
Group company in major or substantial commitments.
4.3 The Executive shall, during the Appointment, comply with the
Company's/Group's guidelines in dealings in securities, the rules of
any Model Code for transactions in securities applicable to the
Company or the Group as a result of listing on any recognised stock
exchange from time to time and any other applicable law or
regulations applying to dealings in shares of the Company or any
Group Company.
4.4 During the Appointment the Company shall not be obliged to provide
the Executive with work. The Company shall be entitled, at any time
during which the Executive is absent due to incapacity or suspension
or during all or any part of any period of time constituting the
notice period with respect to a termination of the Appointment, to
appoint another person to act jointly with the Executive in any
capacity in which the Executive may be employed.
4.5 The Company may at any time suspend the Executive from the
performance of all or some of his duties, exclude him from any
premises of the Company, exclude him from contact with customers,
suppliers or employees upon written notice to the Executive (the
"Suspension Notice") and may not give any reason for so doing, such
suspension or exclusion being limited to all or part of any period
of notice given by either party to terminate the Appointment. The
Executive's salary and benefits will continue to be payable during
such suspension or exclusion until the expiration of the period of
notice given by either party to terminate the Appointment. Except
for the requirement to work, the Executive's express and implied
duties owed to the Company (whether in this agreement or under
common law or otherwise) shall continue during any such period of
suspension or exclusion on the basis as they applied immediately
prior to the suspension or exclusion including, without limitation,
clause 4.2.1 above, provided that for purposes of the restrictive
covenants set forth in Schedule 2, the date of termination of the
Appointment shall be deemed to be the date of the Suspension Notice.
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4.6 The Executive hereby warrants to the Company that by entering into
this Agreement and performing the duties hereunder he shall not be
in breach of any express or implied terms of any other contract or
obligation binding on him.
5. PLACE AND HOURS OF WORK
5.1 The Executive shall normally work at Nile House, Nile Street,
Brighton, East Sussex BN1 1HW or any such other place within
Brighton or London as the Company shall require from time to time,
or any other location throughout the world as the Company and the
Executive shall mutually agree, and shall travel as may reasonably
be required for the proper performance of his duties under this
Agreement.
5.2 The Executive shall work during customary business hours (9am to
6pm) each week day, excluding public and bank holidays, together
with such additional hours on any day as may be necessary to perform
his duties. Any such additional hours shall be unmeasured working
time and Executive shall not be entitled to any additional
remuneration in respect thereof.
5.3 It is agreed that the average maximum weekly working time of 48
hours in Regulation 4 (1) of the Working Time Regulations 1998 shall
not apply to the Executive nor will Regulation 6 (nightworking),
Regulation 10 (daily rest), Regulation 11 (weekly rest), and
Regulation 12 (rest breaks) apply to the Executive. The Executive
may at any time terminate the opt out agreement in this clause by
giving the Company three months notice in writing of his wish that
Regulation 4 (1) should apply to him.
6. REMUNERATION AND EXPENSES
6.1 During the Appointment:
6.1.1 The Company shall pay to the Executive a salary at a rate of
GBP100,000 ("Base Salary") per annum accruing on a daily basis
and payable in arrears by equal monthly instalments which
shall be inclusive of any fees and/or remuneration to which
the Executive may be entitled as a Director of the Company,
which Base Salary shall be subject to annual review by the
Board;
6.1.2 The Executive shall be entitled to a one-time signing bonus of
GBP15,000;
6.1.3 The Executive shall be entitled to a bonus at the discretion
of the Board; and
6.1.4 The Executive shall be awarded options to purchase 225,000
shares in the capital of the Company on such terms as set out
in Schedule 3.
6.2 The Company shall reimburse the Executive for all reasonable and
authorised out of pocket expenses, including hotel and travelling
expenses, wholly and exclusively incurred by the Executive in the
discharge of his duties subject to the production of appropriate
receipts or vouchers or such other evidence as the Company may
reasonably require as proof of such expenses.
7. INSURANCE BENEFITS AND PENSION
7.1 From the Commencement Date, Executive will immediately be enrolled
in the Company's Group Life Plan, Private Healthcare Plan Group
Critical Illness scheme and Permanent Health insurance, subject to
the rules of such schemes. Details of all these schemes are
available from the Company's HR department.
7.2 Executive will be eligible to join the Company Sponsored Group
Personal Pension Scheme after three months continuous employment.
Full details of the scheme are available from HR. A contracting out
certificate is not in force in respect of the Executive's
employment.
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8. HOLIDAYS AND HOLIDAY PAY
8.1 In addition to the normal bank and public holidays the Executive
shall be entitled to 25 working days' paid holiday during each
calendar year ("Holiday Entitlement") (which shall accrue on a daily
basis)to be taken at such time as the Chief Executive Officer may
from time to time approve.
8.2 Untaken Holiday Entitlement in any calendar year (as the case may
be) may not be carried forward to any following calendar year and
such holiday will be forfeited without any right to payment in lieu.
8.3 Each year Executive may be required to retain up to 4 days of
holiday entitlement to cover the Christmas closure period. The
Company's HR department will notify Executive of how much holiday
entitlement will be so required each year prior to the end of the
first calendar quarter of each calendar year.
8.4 Upon termination of the Appointment the Executive shall either be
entitled to salary in lieu of any outstanding holiday entitlement or
be required to repay to the Company any salary received in respect
of Holiday Entitlement taken in excess of his proportionate Holiday
Entitlement.
8.5 The Company reserves the right to require the Executive to take any
accrued but unused holiday entitlement during any period of notice
given to terminate the Appointment.
9. SICKNESS AND ABSENCE
9.1 If the Executive is at any time prevented by illness, accident or
other incapacity from properly carrying out his duties under this
agreement, he shall immediately notify the Chief Executive Officer.
If such incapacity continues for a period of seven days, he shall be
required to provide a medical practitioners' certificate in respect
of the cause of incapacity for statutory sick pay purposes and
covering the whole period of the absence.
9.2 Subject to compliance with the provisions of clause 9.1 above and
subject to the Company's right to terminate the Appointment for any
reason (subject to the terms of this Agreement) including, without
limitation, incapacity, if the Executive is at any time prevented by
illness, accident or other incapacity from properly carrying out his
duties under this agreement, he shall be paid his Base Salary for a
period of up to 13 weeks in any 12 consecutive calendar months (the
"Aggregate Period"). Thereafter, any payments shall be at the
discretion of the Chief Executive Officer and/or the Board.
9.3 Statutory sick pay ("SSP") will be paid by the Company in accordance
with the legislation in force at the time of absence. Any payment of
remuneration under sub-clause 9.2 for a day of absence will
discharge the Company's obligation to pay SSP for that day.
9.4 If the Executive shall at any time have been incapacitated or
prevented by illness or injury or accident or any other
circumstances beyond his control (such incapacity or prevention
being referred to below as "Incapacity") from discharging his duties
during the Appointment for a period or periods exceeding the
Aggregate Period total of 13 or more weeks in any 12 consecutive
calendar months, the Company may by notice in writing to the
Executive given at any time during the period of Incapacity
terminate the Appointment upon six months' written notice.
9.5 If the Incapacity has been caused by the action of a third party in
respect of which damages are or may be recoverable, the Executive
shall as soon as possible after becoming aware of that fact, notify
the Chief Executive Officer of that fact and shall receive the
payments referred to in clause 9.2 above as loans by the Company to
the Executive (notwithstanding that as an interim measure income tax
has been deducted from such payments as if they were emoluments of
employment) and shall repay such loans when and to the extent that
the Executive recovers compensation for loss of earnings from that
third party by action or otherwise, provided that no such repayment
shall apply to income tax amounts deducted from the payments made to
the Executive for which refunds are not available.
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9.6 From the date on which the Executive first receives benefits under a
permanent health insurance scheme provided by the Company related to
the Executive's inability to perform his duties hereunder, the
Executive's entitlement to the Base Salary and all benefits provided
under this Agreement will cease.
10. CONFIDENTIAL INFORMATION
10.1 The Executive shall not at any time during the Appointment nor at
any time after its termination except for a purpose of the Company
or the Group directly or indirectly use or disclose trade secrets or
confidential information relating to the Company or any Group
company or the Company's or any Group company's agents, customers,
prospective customers or suppliers.
10.2 For the purposes of clause 10.1 confidential information shall
include any information relating to the Business and/or the
financial affairs of the Company or the Group or the Company's or
any Group company's agents, customers, prospective customers or
suppliers and in particular shall include the information set out in
Schedule 1 whether or not in the case of documents or other written
materials they are or were marked as confidential and whether or
not, in the case of other information, such information is
identified or treated by the Company or any Group company as being
confidential.
10.3 The Executive shall not be restrained from disclosing any
confidential information which:
10.3.1 he is authorised to disclose by the Board;
10.3.2 had entered the public domain unless it enters the public
domain as a result of an unauthorised disclosure by the
Executive or an authorised disclosure for an unauthorised
purpose by the Executive;
10.3.3 he is required to disclose by law, provided that Executive
promptly notifies the Company of such requirement and
assists the Company in seeking a protective order or other
measures in order to protect the confidential information;
10.3.4 he is entitled to disclose under the Public Interest
Disclosure Act 1998 provided that the disclosure is made in
an appropriate way to an appropriate person having regard to
the provisions of that Act; or
10.3.5 was available or becomes available to the Executive on a
non-confidential basis from a source other than the Company
or the Group.
11. RESTRICTIVE COVENANTS
The Executive acknowledges that he has been appointed to a senior position
and he has or will in the course of the Appointment acquired or acquire
confidential information, trade secrets and knowledge about the business,
operations, customers and trade connections of the Company and the Group.
Executive therefore acknowledges that the restrictions set forth in
Schedule 2 are reasonably necessary for the purpose of protecting the
legitimate business interests, goodwill and the stable trained workforce
of the Company and the Group and agrees to comply with such restrictions.
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12. DESIGNS AND INVENTIONS
12.1 All writings, designs, inventions, programs discoveries or
improvements conceived or made by the Executive during the course of
or arising out of the Appointment (whether alone or together with
any other person or persons) and which concern or are applicable to
products or articles manufactured or sold by or to services provided
by the Company and/or any Group company ("Designs and Inventions")
irrespective of whether such Designs and Inventions were so made,
devised or discovered during normal working hours or using the
facilities of the Company shall be the exclusive property of the
Company and shall be promptly disclosed to the Company by the
Executive.
12.2 The Executive shall at all times whether during the course of or
after the termination of the Appointment if and whenever required by
the Company (and at its expense) execute all such documents and do
all such things as may be necessary effectively to obtain or vest in
the Company or any Group company all rights title and interest in
and to the Designs and Inventions absolutely and the Executive
irrevocably appoints and authorises the Company to act as his
attorney and agent for the purposes of executing and/or signing all
or any documents as may be required to give the Company (and/or its
nominee and/or assignee) the full benefit of the provisions of this
clause. The decision as to the protection or exploitation of any
Designs and Inventions shall be in the absolute discretion of the
Company.
12.3 The Executive waives irrevocably and unconditionally any moral
rights in any part of the world (including any rights conferred by
Section 77-85 of the Copyright Designs and Patents Act 1988) that
the Executive or the Executive's successors, personal
representatives or heirs have or may have against the Company or any
of its employees, officers or agents in any of the Designs and
Inventions referred to in clause 12.1.
12.4 The Executive agrees, at the Company's request and expense, to
exercise during the Appointment, or at any time after the
termination of the Appointment, any moral rights the Executive has
or may have (pursuant to Sections 77-85 of the Copyright Designs and
Patents Act 1988 or otherwise) in any Designs and Inventions
referred to in clause 12.1 against any third party in such manner as
the Company shall reasonably request and in accordance with the
Company's directions, and the Executive agrees not to exercise such
moral rights other than in accordance with this paragraph.
13. TERMINATION
13.1 The Appointment may be terminated with immediate effect by the
Company without notice and without compensation if at any time:
13.1.1 the Executive: has committed any serious or persistent
breach of any of the terms of this agreement and, if such
breach is capable of being cured, has failed to cure the
same within ten business days after receipt of notice from
the Company of such breach; is guilty of any serious
misconduct or continues to be guilty of wilful neglect in
the discharge of his duties under this agreement after
receipt of notice from the Company of such wilful neglect;
or is guilty of any fraud, dishonesty or conduct tending to
bring himself, the Company or any group company into
disrepute;
13.1.2 is convicted of criminal offence other than a motor offence
not including a custodial sentence;
13.1.3 the Executive is adjudicated bankrupt or makes any
arrangement or composition with his creditors;
13.1.4 becomes of unsound mind or a patient within the meaning of
Part VII of the Mental Health Act 1983; or
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13.1.5 the Executive becomes prohibited by law from being or acting
as a director of the Company or taking part in the
management of the Company, whether under the Company
Directors Disqualification Act 1986 or otherwise.
13.2 If the Board has reason to suspect that any one or more of the
events set out in sub-clauses 13.1.1 to 13.1.5 (inclusive) has or
have occurred, the Board may suspend the Executive on such terms as
to payment of salary and other benefits or otherwise as the Board
may think fit up to a maximum period of one month pending further
investigations PROVIDED THAT in the event of any such suspension
being made the Executive shall have the right to terminate his
employment forthwith by notice in writing to the Company but without
any claim for compensation.
13.3 The Appointment may be terminated with immediate effect by the
Executive without notice if at any time the Company has committed
any serious or persistent breach of any of the terms of this
agreement, including (after written notice from the Executive)
wilful neglect in the discharge of its obligations under this
agreement ( in such cases, a termination for "Good Reason"). In such
event, the Executive's termination shall be deemed, for purposes of
compensation, a termination by the Company without notice and the
Executive shall be entitled to a lump sum payment in an amount equal
to the compensation (as set forth in clause 13.8) due to him for the
notice period. In addition, if the Executive terminates the
agreement for Good Reason, the restrictive covenants contained in
Schedule 2 shall be inapplicable.
13.4 Upon a Change of Control (as defined in clause 13.5 below), either
the Company or the Executive may terminate the Appointment
immediately upon notice to the other. In the event the Appointment
is so terminated by either the Company or the Executive, all of the
obligations of the Company and Executive in clauses 2 through 9
shall cease except that the Executive shall be entitled to a lump
sum payment in an amount equal to 6 months Base Salary and the fair
value of all contractual benefits (including Holiday Entitlement
that would have accrued during such period) without further recourse
or liability to the Company.
13.5 For purposes of this agreement, a "Change of Control" of the Company
shall be deemed to have occurred upon (i) any sale, transfer or
other conveyance, whether directly or indirectly, of all or
substantially all of the assets or the Company, on a consolidated
basis, in one transaction or a series of related transactions, (ii)
any sale, transfer or other conveyance, whether directly or
indirectly, of more than fifty percent (50%) of the outstanding
shares of the Company in one transaction or a series of
transactions, (iii) any transaction or series of related
transactions as a result of which any "Person" or "group" (as such
terms are used for purposes of Sections 13(d) and 14(d) or the
United States Securities Exchange Act of 1934, whether or not
applicable) that is not in control of the Company, either directly
or indirectly through its affiliates, on the date of this agreement
gains control of the Company, either directly or indirectly through
its affiliates, or (iv) a reorganization or merger following the
consummation of which the holders of the outstanding shares of the
Company, immediately prior thereto cease to hold at least fifty
percent (50%) of the voting power of the resulting or surviving
company in such reorganization or merger. By way of clarification
with respect to subsection (i) above, the shares of capital stock or
other securities of any corporation or business entity that are
held, directly or indirectly, by the Company shall constitute assets
in connection with any determination or whether a sale of all or
substantially all of the assets of the Company has occurred.
13.6 Upon termination of the Appointment:
13.6.1 the Company shall pay to the Executive any and all
outstanding sums accrued up to the date of termination and
the Executive shall receive (subject to the terms of this
Agreement) all contractual benefits up to the date of
termination.
13.6.2 the Executive shall upon the request of the Company resign
from all (if any) offices held by him in the Company or any
Group company and in the event of his failure to do so the
Company is hereby irrevocably authorised to appoint some
person in his name and on his behalf to sign and execute all
documents and do all things necessary to constitute and give
effect to such resignation;
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13.6.3 the Executive shall immediately (i) return to the Company
all correspondence, documents, papers, memoranda, notes,
records such as may be contained in magnetic media or other
forms of computer storage, videos, tapes (whether or not
prepared or produced by him) and any copies thereof charge
and credit cards and all other property (including any car)
belonging to the Company which may be in the Executive's
possession or under his control, (ii) inform the Company of
all access codes and passwords relating to his employment,
and (iii) provide a signed statement that he has fully
complied with the terms of this sub-clause; and
13.6.4 the Executive shall irretrievably delete any information
relating to the business of the Company stored on any
magnetic or optical disc or memory and all matter derived
therefrom which is in his possession, custody, care or
control outside the premises of the Company and shall
produce such evidence of compliance with this sub-clause as
the Company may reasonably require.
13.7 The Executive shall not at any time after the termination of the
Appointment represent himself as being in any way connected with or
interested in the Business of the Company or the Group.
13.8 The Company may in its absolute discretion at any time after notice
of termination shall have been given by either party lawfully
terminate this agreement by notice in writing with immediate effect
by making a payment of Base Salary and the fair value of all
contractual benefits (including Holiday Entitlement that would have
accrued during such period) in a sum equal to the amount payable for
the unexpired period of notice to the Executive less tax and
national insurance. In such event, for purposes of the restrictive
covenants set forth in Schedule 2, the date of termination of the
Appointment shall be deemed to be the date of any such notice of
immediate termination.
14. DISCIPLINARY AND GRIEVANCE PROCEDURES
14.1 The Executive should refer any grievance he may have about his
employment or about any disciplinary decision relating to him to the
Board of Directors in writing.
14.2 There are no special disciplinary rules affecting the Executive. Any
disciplinary matters will be dealt with by the Board or a director
or committee nominated by the Board.
15. DATA PROTECTION
15.1 The Executive's personal data will be held by the Company in its
manual and automated filing systems and the Executive hereby
consents to the same. Subject to the Executive's right to review the
content and accuracy of the personal data held by the Company from
time to time, the Executive consents to the processing and
disclosure of such data both inside and, where necessary, outside
the European Economic Area in order for the Appointment to be
performed and this agreement to be fulfilled, and further, without
limitation, for decisions to be made regarding the Executive's
employment or continued employment, for obtaining or carrying out
work from or for customers or potential customers, or for the
purpose of any potential sale of over 50% of the shares of the
Company or any Holding Company of the Company or other change of
control or any potential transfer of the Executive's employment
under the Transfer of Undertaking (Protection of Employment)
Regulations 1981. Disclosure may include, in the case of sale,
change of control or transfer, disclosure to the potential purchaser
or investor and their advisors and, in the case of obtaining or
carrying out work, disclosure to customers or potential customers.
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15.2 The Executive consents to reasonable processing by the Company of
sensitive data including medical information for the purpose of the
performance of the Appointment and fulfilment of this agreement and
determining the Executive's fitness to carry out duties on behalf of
the Group. The Executive further consents to the Company processing
data regarding sex, status, race, ethnic origin or disability for
the purpose of monitoring to ensure equality of opportunity within
the Group.
16. MISCELLANEOUS
16.1 Notices may be given by either party by personal delivery or by
letter or e-mail or fax message addressed to the other party at (in
the case of the Company) its registered office for the time being
and (in the case of the Executive) his last known address. Any such
notice given by letter shall be deemed to have been given 48 hours
after posting and any such notice given by fax shall be deemed to
have been given at the time on the confirmation report. Any notice
given to the Company by e-mail may be sent to the normal business
e-mail address of the Company Secretary and any notice given to the
Executive by e-mail may be sent to such e-mail address as may be
agreed between the Executive and the Company from time to time and
any notice given by e-mail shall be deemed to have been given one
hour after it was sent and a hard copy shall be sent by post or fax
by way of confirmation .
Copies of all notices given to the Executive shall also be sent to:
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16.2 There are no collective agreements in force that affect the terms
and conditions of the Appointment.
16.3 This agreement is in substitution for all previous contracts of
service between the Company and/or Group Company and the Executive
(if any) and any such agreements shall be deemed to have been
terminated by mutual consent as from the date on which the
Appointment commenced.
16.4 In the event of the expiry of this agreement at the end of the Term
without it being renewed the Executive agrees in accordance with
section 197 of the Employment Rights Act 1996 to exclude his rights
to make any claim in relation to the termination of the Appointment
in respect of a redundancy payment.
16.5 This agreement shall be construed and governed by English Law and
the parties submit to the non-exclusive jurisdiction of the English
Courts.
16.6 If at any time any term or provision in this agreement shall be held
to be illegal, invalid or unenforceable, in whole or in part, under
any rule of law or enactment, such term or provision or part shall
to that extent be deemed not to form part of this agreement, but the
enforceability of the remainder of this agreement shall not be
affected.
16.7 The provisions of clauses 10, 11, 12, 13.3 and 16 shall survive
termination of this agreement.
17. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not party to this agreement shall have no right
under the Contracts (Rights of Third Parties) Act 1999 to enforce
any term of this agreement. This clause does not affect any right or
remedy of any person which exists or is available otherwise than
pursuant to that Act.
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IN WITNESS whereof the parties have executed this agreement as a deed on the
date of this agreement
SIGNED as a DEED by )
FUTUREMEDIA PLC acting by: )
)
)
Director
Director/Secretary
SIGNED as a DEED by )
MARK WILSHER in the presence of: )
)
Witness Signature:
Full Name:
Address:
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SCHEDULE 1
Confidential information
For the purposes of clause 10, confidential information shall include, but shall
not be limited to:
1. the business methods and information of the Company and any Group company
(including prices charged, discounts given to customers or obtained from
suppliers, product development, marketing and advertising programmes,
costings, budgets, turnover, sales targets or other financial
information);
2. lists and particulars of the Company's and any Group company's suppliers
and customers and the individual contacts at such suppliers and customers;
3. details and terms of the Company's and any Group company's agreements with
suppliers and customers;
4. secret manufacturing or production processes and know-how employed by the
Company and any Group company or its/their suppliers;
5. confidential details as to the design of the Company's and any Group
company's or its and/or their suppliers' products and inventions or
developments relating to future products;
6. information belonging to customers or suppliers of the Company, or to any
third party, which the Company is obligated to keep confidential;
7. details of any promotions or future promotions or marketing or publicity
exercises planned by the Company or any Group Company;
8. details of any business plans of the Company or any group company; and
9. any information which may affect the value of the Business or the shares
of the Company or any Group company.
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SCHEDULE 2
Restrictive Covenants
1. The Executive shall not without the prior written consent of the Board for
a period of six months after the termination of the Appointment, directly
or indirectly, on his own behalf, or on behalf of any person firm or
company in connection with any business which is or is intended or about
to be competitive with the Restricted Business (as defined below):
1.1 solicit or canvass the custom of any Customer (as defined below);
1.2 solicit or canvass the custom of any Potential Customer (as defined
below);
1.3 deal with any Customer;
1.4 deal with any Potential Customer;
1.5 solicit or entice away, or attempt to entice away from the Company
or any Group company any employee of the Company or any Group
company who is employed by the Company or any Group company at the
date of the termination of the Appointment provided that this
restriction shall only apply to persons whom the Executive has
managed or with whom he has worked at any time during the 6 months
immediately preceding the date of termination of the Appointment and
who on the date of termination of the Appointment was employed by
the Company or Group Company in the capacity of director, senior
sales, technical, business development or any other managerial role
and provided that this restriction shall not apply to non-managerial
(clerical or administration or manual) staff;
2. The Executive shall not without the prior written consent of the Board for
a period of six months after the termination of the Appointment, directly
or indirectly, on his own behalf, or on behalf of any person, firm or
company:
2.1 within the Restricted Territory (as defined below) set up, carry on,
be employed in, provide services to, be associated with, or be
engaged or interested in, whether as director, employee, principal,
agent or otherwise any business which is or is intended or about to
be competitive with the Restricted Business save as a shareholder of
not more than 3% of any public company whose shares are quoted on
any recognised stock exchange or the Alternative Investment Market;
2.2 endeavour to cause any person, firm or company who is at the date of
termination of the Appointment or at any time during the six months
immediately prior to such termination a supplier to the Company
and/or any Group company to either cause to cease to supply the
Company or any Group company or materially alter the terms of such
supply in a manner detrimental to the Company or any Group company
provided that references to suppliers shall only refer to those
persons, firms or companies with whom the Executive has had material
personal contact during the course of the Appointment or for whom
the Executive has had managerial responsibility in either case at
any time during the six months immediately prior to the date of
termination of the Appointment.
3. In this Schedule 2 the following words and phrases shall have the
following meanings:
3.1 "Restricted Business" shall mean the Business or any part of the
Business which in either case:
3.1.1 is carried on by the Company or any member of the Group at the
date of termination of the Appointment; or
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3.1.2 was carried on by the Company or any member of the Group at
any time during the six months immediately prior to the date
of termination of the Appointment; or
3.1.3 is to the knowledge of the Executive to be carried out by the
Company or any member of the Group at anytime during the six
months immediately following the date of termination of the
Appointment;
and which, as a result of the Appointment, the Executive was
materially concerned with or had management responsibility for (or
had substantial confidential information regarding) in either case
at any time during the period of six months immediately prior to the
date of termination of the Appointment;
3.2 "Restricted Territory" shall mean any country in which the Company
or any other Group company:
3.2.1 carried on any Restricted Business or provided any goods or
services in connection with any Restricted Business at the
date of termination of the Executive's employment; or
3.2.2 carried on any Restricted Business or provided any goods or
services in connection with any Restricted Business at any
time during the period of six months immediately prior to the
date of termination of the Executive's employment;
and regarding which country the Executive:
(a) was materially concerned or worked in;
(b) had management responsibility for; and/or
(c) obtained confidential information,
during the course of, and as a result of, the Appointment at any time
during the period of six months immediately prior to the date of
termination of the Appointment;
3.3 "Customer" shall mean any person, firm or company who at the date of
termination of the Appointment or at any time during the six months
immediately prior to such termination was a customer of the Company
or any member of the Group and from whom the Executive had obtained
business on behalf of the Company or any Group company or to whom
the Executive had provided or arranged the provision of goods or
services on behalf of the Company or any Group company or for whom
the Executive had management responsibility in any case at any time
during the period of six months immediately prior to the date of
termination of the Appointment;
3.4 "Potential Customer" shall mean any person, firm or company with
whom either the Executive or any other employee of the Company or
any Group company who the Executive had, at the date of the
negotiations, management responsibility for, carried out
negotiations on behalf of the Company or any Group company at any
time during the three months immediately prior to the date of
termination of the Appointment with a view to such person, firm or
company becoming a customer of the Company or any Group company.
4. In the event that the Executive receives an offer of employment or request
to provide services either during the Appointment or during the currency
of the restrictive periods set out in clauses 1 and 2 of this schedule 2,
the Executive shall provide immediately to such person, company or other
entity making such an offer or request a full and accurate copy of this
agreement signed by both parties.
5. The restrictions contained in this clause are considered by the parties to
be reasonable in all the circumstances. Each sub clause constitutes an
entirely separate and independent restriction and the duration, extent and
application of each of the restrictions are no greater than is necessary
for the protection of the interests of the Company and any Group company.
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SCHEDULE 3
Options
The Executive shall be awarded by the Company options in respect of 225,000
shares in the capital of the Company subject to the terms of the Futuremedia PLC
2005 Unapproved Share Option Scheme for New Employees (or such other plan as the
Board of Directors may specify):
(a) exercise price of the options shall be the Market Value (as defined in the
scheme) on the Commencement Date; and
(b) options shall vest in equal annual instalments over the three year period
commencing on the first anniversary of the Appointment and shall be
exercisable for a period of ten years from the Commencement Date.
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