DATED 2002
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AUTHORISZOR LIMITED
- and -
UTILIS VENTURES
LIMITED
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C O N S U L T A N C Y A G R E E M E N T
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THIS AGREEMENT is made on the day of May 2002
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B E T W E E N :-
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(1) AUTHORISZOR LIMITED of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,▇▇▇ ▇▇▇ ("the Company").
(2) UTILIS VENTURES LIMITED of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ("the Consultants")
DEFINITIONS
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In this Agreement, save where the context otherwise requires: -
"Board" Means the Board of Directors of the Company for the
time being and from time to time
"The Group" Means the Company and all or any of the Subsidiary,
holding or associated companies (as defined in section
736 of the Companies ▇▇▇ ▇▇▇▇ as supplemented by
section 736A
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of the Companies ▇▇▇ ▇▇▇▇ and section 416 of the
Income and Corporation Taxes Act 1988 respectively)
for the time being of the Company and the expressions
"Companies of the Group" and "Company of the Group"
shall be construed accordingly
"R & D Tax Credit" Means any tax payment credit or rebate received from
the Inland Revenue in relation to research and
development arising from claims submitted by the
Company for the financial years ending and 30th June
2001 and 30th June 2002
`'Termination Date" 6 months from the date of this Agreement
"The Services" shall include the consultancy services as set out at
Schedule 1 to this Agreement
WHEREAS
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(A) The Consultants have certain skills and abilities which may be useful to
the Company and/or the Group from time to time.
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(B) The Company has agreed to appoint the Consultants and the Consultants have
agreed to provide their services to the Company and/or the Group for the
duration of this Agreement.
IT IS HEREBY AGREED as follows :-
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1 APPOINTMENT
1.1 The Company appoints the Consultants to provide the Services to the Company
and the Consultants accept that appointment upon the terms and conditions
of this Agreement.
2 TERM
2.1 This Agreement shall commence on the date of this Agreement and shall
terminate on the Termination Date.
3 CONSULTANTS' SERVICES
3.1 The Consultants must maintain in force the following insurances;
(a) the insurance (of not less than (pound)250,000) for each and every
incident against liability for death or for injury to any person and
loss of or damage to any property arising out of the provision of the
Services; and
(b) employers liability insurance under the Employer Liability (Compulsory
Insurance) ▇▇▇ ▇▇▇▇ (or any amendment or reinactment of that Act) and
in each case that insurance must extend to indemnify the Company
against any liability for which the Consultants may be legally liable
under the Agreement.
3.2 The Consultants shall supply such tools, equipment and assistance as may be
necessary to perform the Services required of it to the Company and the
Company shall neither have nor assume any responsibilities, obligations or
liabilities in connection therewith as regards the Consultants, or any of
its officers or as regards any third party or parties.
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4 FEES
4.1 In consideration of the provision of the Services the Company shall, pay to
the Consultants the following fees:-
4.1.1 on 31st May 2002 a payment of(pound)10,500 and VAT; and
4.1.2 on 30th June 2002 a payment of(pound)15,000 and VAT; and
4.1.3 on 31st July 2002 a payment of(pound)25,000 and VAT ; and
4.1.4 on receipt of the R & D Tax Credit by the Company for the financial
year ending 30th June 2001 a payment of (pound)80,000 and on receipt
of the R & D Tax Credit by the Company for the financial year ending
30th June 2002 a payment equivalent to a sum representing fifty per
cent of the payment received in relation to the Tax Credit for the
financial year ending 30th June 2002; and
4.1.5 if there is an equity investment into the Company or any Group
Company in the sum of (pound)250,000 or more by Fox Hayes Investments
which arises from the Services (whether prior to or during this
Agreement) a payment of (pound)20,000 within one month of completion
of all legal documentation in connection with such investment.
4.1 It is agreed that these amounts are payable notwithstanding clause 12 in
respect of which there is no right of set off albeit the Consultants
acknowledge the right of the Company to institute proceedings in respect of
any failure outlined in clause 12 or any breach by the Consultants of this
Agreement.
4.2 In relation to the VAT payments under clause 4.1 above the Consultants
recognise that the Company may elect to make these payments following
receipt of the relevant VAT repayments.
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4.3 The Consultants agree to make and account for all statutory deductions in
respect of any payments made by the Company to the Consultants under
clauses 4.1.
4.4 The Company agrees to use best endeavours to procure the R & D Tax Credit.
5 HOURS
5.1 The Consultants shall make themselves available to the Company at such
times and such locations as the Consultants and the Company agree from time
to time.
5.2 The Company shall determine who from the Consultants will carry out the
Services.
6 EXPENSES
6.1 The Company shall reimburse the Consultants for all travelling (at standard
rate), hotel, entertaining and other expenses reasonably and necessarily
incurred by the Consultants in connection with the business of the Company
provided that these are agreed in advance by the Company and evidenced by
appropriate receipts or vouchers to be produced on a monthly basis.
7 TAX STATUS
7.1 It is the intention of the parties that the Consultants are independent
contractors. Nothing in this Agreement shall make the Consultants an
employee, agent or partner of the Company nor are they authorised to pledge
the Company's credit, sign any document, enter into any agreement or make
any promise on behalf of the Company.
7.2 The Consultants are responsible for the entire remuneration of any
independent contractor supplied to the Company under this Agreement. The
Consultants will continue to make and account for all the statutory
deductions from the independent contractor's salary and will indemnify the
Company against any claims:
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(i) for income tax, National Insurance contributions, fines, penalties or
interest;
(ii) for any claims in respect of an independent contractor's remuneration
or other benefits.
7.3 Without prejudice to the preceding provisions of this clause the
Consultants shall remain independent contractors and not servants of the
Company and in such capacity shall have the exclusive responsibility for
the payment of all tax liabilities (including without limitation income
tax, national insurance contributions, VAT, fines, penalties or interest)
whatsoever arising out of any payments received by them under this
Agreement and will indemnify the Company against any such claims.
7.4 The relationship between the Company and the Consultants is evidenced and
perpetuated by this Aagreement shall neither be nor regarded as being a
relationship which will give rise to any other rights or responsibilities
whatsoever under employment protection legislation or under the statutory
sick pay scheme or other employment legislation.
8 SKILL AND CARE
The Consultants must carry out the Services and perform their duties and
obligations with reasonable care and skill and to the best of their ability
and shall comply with all applicable laws and regulations in connection
with the Services.
9 CONFIDENTIALITY
9.1 The Consultants hereby acknowledge that the business of the Company and the
Group is a specialised and competitive business and that during the course
of their appointment with the Company they will have access to and have an
intimate knowledge of the Company's and the Group's trade secrets and
confidential information. The Consultants
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further acknowledge that the disclosure of any trade secrets or
confidential information to actual or potential competitors of the Company
or the Group would place the Company and the Group at a serious competitive
disadvantage and would do serious damage, financial and/or otherwise, to
its or their business and business development and would cause immeasurable
harm.
9.2 For the purpose of clause 9.1 "confidential information" shall include but
not be limited to:-
the Company's existing products, new products, processes, know-how,
designs, specifications, inventions, works, formulas, methods, samples,
materials, developmental or experimental work, improvements, discoveries,
research, software programmes, marketing, selling, business plans, budgets,
unpublished financial information, prices, costs, suppliers and customers.
9.3 By reason of clauses 9.1 and 9.2 the Consultants agree that without
prejudice to any other duty implied by law or equity they will not without
the prior written consent of the Company (such consent to be withheld only
as far as may be reasonably necessary to protect the legitimate business
interests of the Company and the Group) during their appointment or at any
time thereafter communicate or disclose to any person, company or firm or
use for their own purposes any of the secrets or confidential information
outlined in clauses 9.1 and 9.2 above relating to the Company and/or its
clients or relating to the Group and/or its clients in any manner
whatsoever save as shall be reasonably necessary for the promotion of the
business of the Company and the Group.
10 NON-SOLICITATION AND RESTRICTIVE COVENANTS
10.1 Without prior written approval of the Company (such approval not to be
unreasonably withheld) the Consultants undertake to the Company on behalf
of itself and as agent for the Group that they will not directly or
indirectly and whether alone or in conjunction with
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or on behalf of any other person and whether as a principal, shareholder,
director, employee, agent, consultant, partner or otherwise:
(a) at any time during the period of 12 months from the Termination Date
be engaged, concerned or interested in any business which at any time
during the Relevant Period has supplied products or services to the
Company or to any Relevant Group Company if such engagement, concern
or interest causes or would cause the supplier to cease or materially
reduce its supplies to the Company or any Relevant Group Company as
the case maybe.
(b) at any time during the period of 12 months from the Termination Date
be engaged, concerned or interested in any business which at any time
during the Relevant Period, was a Relevant Customer of the Company or
of any Relevant Group Company if such engagement, concern or interest
causes or would cause the Relevant Customer to cease or materially to
reduce its orders or contracts with the Company or any Relevant Group
Company.
(c) at any time during the period of 12 months from the Termination Date
so as to compete with the Company or any Relevant Group Company
canvass, solicit or approach or cause to be canvassed, solicited or
approached any Relevant Customer for the sale or supply to it of
Relevant Products or Services, or endeavour to do so; or
(d) at any time during the period of 12 months from the Termination Date
so as to compete with the Company or any Relevant Group Company deal
or contract with any Relevant Customer in relation to the sale or
supply of any Relevant Products or Services, or endeavour to do so; or
(e) at any time during the period of 12 months from the Termination Date
solicit or induce or endeavour to solicit or induce any Key Person to
leave the employ of
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the Company, whether or not such person would commit any breach of his
contract of employment or engagement by leaving the service of the
Company or any Group Company; or
(f) at any time during the period of 12 months from the Termination Date
in connection with any business in or proposing to be in competition
with the Company or any Relevant Group Company, employ, engage or
appoint or in any way cause to be employed, engaged or appointed a Key
Person.
(g) encourage, assist or procure any third party to do anything which, if
done by him would be in breach of 10.1 (a) to (f) above.
10.2 The Consultants agree with and undertake to the Company on behalf of itself
and as agent for the Group that in addition to the restrictions contained
in clause 10.1 the Consultants will not without the Company's prior written
consent directly or indirectly during the period of 12 months following the
Termination Date either on their own account or for any other person, firm
or company and whether as principal, holder, partner, employee, officer,
agent or otherwise within the Restricted Territory carry on or be engaged
or concerned or interested in or provide technical, commercial or
professional advice to any business which supplies Relevant Products or
Services in competition with the Company or any Relevant Group Company.
10.3 Each of the restrictions in clause 10 is intended to be separate and
severable and in the event that any of the restrictions shall be adjudged
to be void or ineffective for whatever reason but would be adjudged to be
valid and effective if part of the wording or range of services or products
were reduced in scope or deleted, the said restrictions shall apply with
such modifications as may be necessary to make them valid and effective.
10.4 Since the Consultants may also obtain in the course of this Agreement by
reason of services rendered to the Group knowledge of the trade secrets or
other confidential
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information of the Group, the Consultants hereby agree that they will at
the request and cost of the Company enter into a direct agreement or
undertaking with the Group whereby they will accept restrictions
corresponding to the restrictions contained in this agreement (or such of
them as may be appropriate in the circumstances) in relation to such
products and services and such area and for such period as the Group may
reasonably require for the protection of its legitimate interest.
10.5 For the purposes of this clause 10 the following expressions shall have the
following meanings:
(a) "Effective Date" means the Termination Date of this Agreement
(b) "Key Person" shall mean any person who on the Effective Date is a
director or officer or manager or executive or of the same or similar
grade to the Consultants employed by the Company or the Group or any
consultant of the Company or Group with whom the Consultants worked or
had material dealings or for whose work the Consultants were
responsible or managed in the course of providing their services under
this agreement at any time during the Relevant Period.
(c) "Relevant Customer" shall mean any person, firm, company or
organisation who or which at any time during the Relevant Period is or
was:
(i) negotiating with the Company or a Relevant Group Company for the
sale or supply of Relevant Products or Services; and/or
(ii) a client or customer of the Company or any Relevant Group Company
for the sale or supply of Relevant Products or Services; and/or
and in each case with whom the Consultants were directly concerned or
connected or any employee who was under the direct or indirect
supervision of the Consultants shall have had personal dealings in the
course of providing
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services to the Company or of whom the Consultants had personal
knowledge during the Relevant Period in the course of providing their
services to the Company under this Agreement.
(d) "Relevant Group Company" shall mean any Group Company (other than the
Company) for which the Consultants have performed services under this
agreement or for which they have had operational or management
responsibility or they have provided services at any time during the
Relevant Period.
(e) "Relevant Period" shall mean the period of 12 months immediately
before the Effective Date.
(f) "Relevant Products or Services" shall mean products or services which
are of the same kind as or of a materially similar kind to and
competitive with any products or services sold by the Company or any
Relevant Group Company within the Relevant Period and with which sale
or supply the Consultants were directly concerned or connected or of
which they had personal knowledge during the Relevant Period in the
course of providing their services under this Agreement.
(g) "Restricted Territory" shall mean within England, Scotland, Wales,
Northern Ireland and Ireland and any other country in the world where
on the Effective Date the Company was engaged in the research into,
development, manufacture, distribution, sale or supply or otherwise
dealt with the Relevant Products or Services and in which the
Consultants were directly or indirectly concerned or connected or of
which they had personal knowledge during the Relevant Period in the
course of providing their services under the Agreement.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 The ownership of and sole right to the copyright in any correspondence
information plans documentation material ("the Information") prepared by
the Consultants for the
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Company under this Agreement shall be vested in the Company from the outset
and the Company shall be at liberty to effect and be responsible for
securing such protection of the Information by registration as it may see
fit.
11.2 The Consultants shall lend to the Company all assistance in securing the
registration of the Information if required by the Company to so do and
shall if required to do so by the Company execute any assignment of the
copyright in the Information complying with the provisions of the Copyright
Designs and Patents ▇▇▇ ▇▇▇▇ (or any subsequent enactment) but the right of
the Company to require such assignment of copyright shall in no way be
construed as indicating that the copyright in such designs is other than
vesting in the Company in accordance with the terms of this Agreement.
11.3 The Consultants shall ▇▇▇▇ the Information with a statement that the
copyright shall be vested in the Company.
11.4 The Consultants covenant with the Company to observe all industrial and
intellectual property rights of the Company and not cause or permit
anything which may endanger the said intellectual property or the Company's
title to it or assist or suffer others to do so.
11.5 The Consultants shall indemnify and keep indemnified the Company against
all costs claims demands expense and liabilities arising out of or in
connection with any breach of this clause or any breach by the Consultants
of any intellectual property rights of any third party arising from the use
by the Consultants of the Company's intellectual property save only that
this clause shall cease to have effect twelve calendar months from the end
of this Agreement.
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12 TERMINATION
Notwithstanding any other provision of this Agreement the Company may terminate
this Agreement :-
12.1 forthwith upon giving to the Consultants written notice to that effect if
the Consultants :-
(a) are guilty of any material breach or non-observance of any of the
terms and conditions contained in this Agreement; or
(b) becomes insolvent or makes any composition with their creditors; or
(c) are incompetent and/or neglects or omits to perform any of their
duties or obligations under this Agreement; or
(d) fails or refuses after written instruction to carry out the duties and
obligations reasonably and properly required of them.
(e) fails to provide a suitably qualified and competent person to supply
the Services to the Company, or provides a person without prior
approval of the Company.
12.2 by not less than 1 month's written notice to that effect if the Consultants
are not able to provide their services by reason of ill-health hereunder
for a cumulative period of 15 consulting days in any period of 12
consecutive months.
13 OTHER INTERESTS
The Consultants are free to provide consultancy services and/or take up
positions with third parties provided that such activities are not in
breach of this Agreement.
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14 OBLIGATIONS ON TERMINATION
Upon termination of this Agreement (for whatever cause) the Consultants shall
deliver up to the Company all documents, records, papers or other Company or
Group property which may be in their possession or under their control and which
relate in any way to the property business affairs of the Company or the Group.
Further, no copies shall be retained by the Consultant..
15 NOTICES
15.1 Any notice required or authorised to be given under this Agreement may be
served by personal delivery or by pre-paid registered or recorded delivery
letter or by cable or telex addressed to the party in question at the
address of such party given in this Agreement or to such other addresses as
may be notified in writing for the purposes of this Agreement. Any notice
so given by personal delivery shall be deemed to have been served 48 hours
after each had been posted and any notice so given by cable or telex shall
be deemed to have been served 24 hours after it shall have been despatched.
16 PROPER LAW
This Agreement shall be governed by construed and take effect in all
respects in accordance with English law and the parties hereto hereby
submit to the non-exclusive jurisdiction of the High Court of Justice in
England.
17 SUPERCESSION
This Agreement shall supersede all previous Agreements whether written or
not heretobefore subsisting between the Company and the Consultants.
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18 SEVERABILITY
If any part or term or provision of this Agreement not being of a
fundamental nature is held to be illegal or unenforceable the validity or
enforceability of the remainder of this Agreement shall not be affected.
IN WITNESS WHEREOF the parties hereto have entered into this Agreement the day
and year first before written.
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SIGNED for and on behalf of )
AUTHORISZOR LIMITED )
in the presence of :- )
SIGNED for and on behalf of )
UTILIS VENTURES LIMITED )
in the presence of: )
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SCHEDULE 1
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"The Services"
The Consultants in providing the Services to the Company will provide the
following advice/ assistance to the Company and/or the Group:-
1. Investor Relations.
2. Strategic Partner Relations.
3. Development of Business Plan to June 2004.
4. Advice to CEO and the Board on the conduct of the Company and/or the
Group.
5. Assist CEO achieve cost savings.
6. Assist CEO with regard to SEC reporting requirements.
7. Advise CFO/Secretary with regard to Quarter end and Year end 2002
matters.
8. Advise CFO/Secretary with regard to reorganisation of finance
function.
9. Assistance in relation to equity investment or other investment in the
Company and/or the Group.
10. Advice in relation to obtaining tax credits/repayments.
11. Assist CEO with rolling 3 year business plan and Company/Group
strategy.
12. Establish high level marketing strategy to support business plan in 11
above.
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13. Advise on and build a targeted portfolio of investment source options
for the Company and/or Group.
14. Complete the Pre Worx business relationship.
15. Research and advise the CEO and Board on asset disposal options.
16. Attend all necessary meetings.
17. Undertake any activity the CEO and Board may from time to time
reasonably require.
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