THIS AGREEMENT is made the day of ▇▇▇▇
▇ ▇ ▇ ▇ ▇ ▇ N:-
(1) AUTHORISZOR INC of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("the
Company") ; and
(2) ▇▇▇▇▇▇ CUSSONS of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
("the Employee")
WHEREAS:
A. The Employee's employment with the Company terminated on 29th March 2002
("Termination Date") by reason of resignation by the Employee
B. The parties have entered into this Agreement for the purposes of recording
and implementing the terms and conditions on which they have agreed to
settle all outstanding claims referred to in clause 2 of this Agreement
that the Employee has or may have against the Company or any of its Group
companies or any of its or their officers or employees following the
termination of the Employee's employment on the Termination Date
("Termination")
NOW IT IS AGREED AS FOLLOWS:
1. Subject to and in consideration of the Employee complying with his
obligations under this Agreement the Company will pay to the Employee by
way of compensation for the loss of the Employee's employment and without
any admission of liability whatsoever on the part of the Company the
following sums:-
1.1 a payment of (pound)10,000 by the date of this Agreement; and
1.2 a payment of(pound)9,500 on 31st May 2002; and
1.3 a payment of(pound)10,000 on 30th June 2002 (together called
"Compensation").
2 The Company and the Employee believe that the Compensation falls within S19
and S148 of the Income and Corporation Taxes Act 1988 and as amended and
that the Compensation can be paid without deduction of income tax and
national insurance and the Company shall use reasonable endeavours subject
to statutory provisions in force from time to time and shall provide such
information to the Inland Revenue as is reasonably requested to procure
that the Compensation can be paid without deduction of income tax or
national insurance.
3. The Employee agrees to accept the Compensation in full and final settlement
of all contractual and/or statutory claims (including a basic award in an
Employment Tribunal) which the Employee has or may have against the Company
any of its Group companies or any of its or their officers or employees
arising out of his contract of employment and/or its termination whether
arising by statute common law or under contract or otherwise and
accordingly the Employee (having warranted that he has raised the
possibility of pursuing the claims referred to at sub-clauses (a) to (q)
below and that he is not aware of any other claims which he has against the
Company or against any Group companies or any of its or their officers
agents or employees) hereby
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agrees to waive discharge and release any and all such claims complaints
and actions and without prejudice to the generality of the foregoing the
Employee agrees to refrain from instituting or continuing any complaint
against the Company or any of its Group Companies or any of its or their
officers or employees in the employment tribunal or any other court or
tribunal in respect of:-
(a) unfair dismissal;
(b) statutory redundancy pay;
(c) contractual enhanced redundancy pay;
(d) wrongful dismissal or any claim for breach of any express or implied
term of the Employee's contract of employment;
(e) holiday pay;
(f) outstanding pay, overtime, bonuses or commission;
(g) unlawful deductions from wages;
(h) any claim under the Employment Rights ▇▇▇ ▇▇▇▇ and/or the Sex
Discrimination ▇▇▇ ▇▇▇▇ and/or the Race Relations ▇▇▇ ▇▇▇▇ and/or the
Disability Discrimination ▇▇▇ ▇▇▇▇ and/or the Equal Pay ▇▇▇ ▇▇▇▇
and/or the Trade Union and Labour Relations (Consolidation) ▇▇▇ ▇▇▇▇
and/or the Working Time Regulations 1998 and/or under any provision of
European Community Law and/or the National Minimum Wage ▇▇▇ ▇▇▇▇;
(i) any claim under the Part-Time Workers (Prevention of Less Favourable
Treatment) Regulations 2001;
(j) any claim under the Maternity and Parental Leave etc Regulations 1999;
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(k) any claim under the Data Protection ▇▇▇ ▇▇▇▇;
(l) any claim under European Union Law;
(m) any claim relating to the manner of the circumstances surrounding the
Termination;
(n) any claim for a protective award under the Collective Redundancies and
Transfer of Undertakings (Protection of Employment) (Amendment)
Regulations 1999;
(o) any claim at common law, whether or not such claim comes within the
jurisdiction of an Employment Tribunal;
(p) any claim for personal injury resulting from the Employee's employment
with the Company and of which he was aware at the date of this
Agreement provided always that nothing in this Agreement excludes the
Employee's right to pursue any claim for personal injury other than as
provided in this sub-clause;
(q) subject to clauses 9 and 10 below any claim in relation to the
Company's or any Group company's share options, bonus schemes or any
long term incentive plans applying to you;
but excluding any accrued benefits to which the Employee is entitled
under the Company's pension scheme.
4. Notwithstanding the provisions of this Agreement in the event that the
Employee brings any claim against the Company or any Group company or any
of its or their officers agents or employees then the sums paid to the
Employee under clause 1 of this
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Agreement shall be set off against any sum which the Employee is awarded in
connection with such claim or which the Company or any Group company or any
of its or their officers agents or employees is ordered to pay to or
regarding the Employee in connection with such claim.
5. Nothing in clause 4 above shall prevent the Employee from taking or
instigating proceedings against the Company to recover any liability
incurred by the Employee in his capacity as an officer and director of the
Company resulting from any group or class actions involving the Company if
the Employee shall be found not to be responsible for such liability and
nothing in this Agreement shall prevent the Company or any Group Company
from taking or instigating proceedings against the Employee or making the
Employee a party to any proceedings relating to group or class actions
involving the Company or any Group Company.
6.1 Subject to clauses 6.2 below the Employee will return forthwith to the
Company all property belonging to the Company and to any Group companies
including but not limited to all telecommunications equipment (including
hardware and software), Company credit cards, keys, documents, files,
lists, maps, technical information, memoranda, correspondence including all
or any copies thereof in the Employee's possession or control and further
shall use his best endeavours to prevent the publication or disclosure of
any information concerning the business dealings transactions or affairs of
the Company, its subsidiaries or associates or its or their clients or
customers.
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6.2 The Employee will be allowed to retain the Company's personal computer,
printer, modem and mobile phone.
7. The Employee shall sign and forthwith deliver to the Company a formal
letter of resignation as Chief Financial Officer of the Company and as a
director of all Group companies in which he shall hold office in the form
of the draft letter of resignation at Schedule 1.
8. The Employee undertakes that he will within 28 days of the date of this
Agreement submit to the Company documentation satisfactory to the Company
in relation to all outstanding expenses incurred by the Employee on Company
business in accordance with the Company's expenses policy.
9.1 The Employee has the benefit of the following stock options with the
Company in accordance with the Authoriszor Inc 1999 Stock Plan ("1999
Plan") and the 2000 Omnibus Stock and Incentive Plan of Authoriszor Inc
("2000 Plan") and the stock option agreements executed by Employee with
respect to such stock options:
9.1.1 an option to purchase 100,000 shares at an exercise price of
$6.75 per share, which vests as to 25% each year on the first
four anniversaries of 1st January 2000; and
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9.1.2 an option to purchase 200,000 shares at an exercise price of
$1.50 per share, which option was granted as at 9th February
2001, is fully vested and which is for a 10 year term;
together called "the Stock Options".
9.2 If the Company re-prices the stock options under the 1999 Plan and the 2000
Plan then the Employee will be entitled to have the Stock Options re-priced
in line with the re-pricing of the other options as the Company may from
time to time determine and if the Company decides to issue new options to
shareholders holding options under the 1999 Plan and the 2000 Plan the
Employee will be entitled to be granted new options in respect of the Stock
Options.
10.1 The Employee will be granted 61,952 of the Company's Series A Cumulative
Redeemable Preferred Stock ("the Preferred Stock") in accordance with the
Certificate of Designations, Preferences and Relative Rights,
Qualifications, Limitations and Restrictions relating to the Preferred
Stock dated December 4, 2001 (the "Certificate") and the Company will
deliver the relevant stock certificate within 5 working days of the date of
this Agreement.
10.2 Subject to the approval of the Company, the passing by the Board of
Directors of the necessary resolutions and the written approval of the
holders of the Preferred Stock the Company may in its discretion grant to
the Employee additional Preferred Stock taking into account any amounts
received by the Company from any tax rebates.
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11. Neither the Employee nor the Company shall make any public statement or
other communication in relation to the terms of this Agreement or
circumstances giving rise to the execution of this Agreement except to
their professional advisers, as required by law or as agreed between the
parties.
12. The Employee agrees and undertakes that he will not make or publish or
cause to be made or published any derogatory or defamatory comments or such
other remarks comments or statements about the Company or any Group
companies (including its or their officers managers or employees) or its or
their business in any capacity whatsoever.
13. Subject to clauses 14 and 15 below the Company shall use all reasonable
endeavours to ensure that its officers and directors will not make or
publish or cause to be published any derogatory or defamatory comments or
such other remarks comments or statements bout the Employee.
14. Nothing contained in paragraph 11 of this Agreement shall be construed to
limit or otherwise restrict the Company or any Group companies from
prosecuting, defending, providing testimony or evidence or responding to
government process in any judicial or administrative proceeding including
an informal proceeding of the Securities and Exchange Commission or NASDAQ.
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15.1 The Employee agrees to fully co-operate in good faith with the Company and
any Group companies and its or their legal and professional advisers in its
or their defence of, or other participation in, any administrative,
judicial or other proceeding, including an informal investigation by the
Securities and Exchange Commission or NASDAQ, arising from any charge,
complaint or other action which has or may be filed or brought relating to
events that occurred, in whole or in part, during the Employee's period of
employment with the Company or any Group companies.
15.2 The Employee shall comply with all reasonable requests to provide
information to and assist the Company and any Group companies in responding
to or complying with any requirements or orders for discovery, enquiries,
investigations, requests for information, subpoenas or witness summons by
any opposing party or any federal, state, or local government agency
(including without limitation the Securities and Exchange Commission,
NASDAQ or the NASD).
15.3 At the request of the Company or any Group Company and on condition that
the Employee is satisfied with any entry such approval not to be
unnecessary withheld, the Employee shall also sign any unsigned entries in
the minute books of the board of directors or the statutory books for
meetings during the time that he was Company Secretary of the Company and
the Company shall at the time provide the Employee with a copy of such
entry.
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16. The Employee acknowledges and agrees that save to the extent expressly
provided in this Agreement all payments and benefits which the Employee
received or was entitled to in connection with his employment with the
Company or any Group company shall cease with effect from the Termination
Date.
17. The Company will provide to the Employee or any prospective employer of the
Employee so requesting it a reference.
18. The Company will pay direct to the Employee's legal advisers a sum of
(pound)2,500 and VAT as a contribution towards the Employee's legal costs
of obtaining independent legal advice on the terms of this Agreement on
receipt by the Company of an appropriate invoice addressed to the Employee
but marked payable by the Company.
19. The Employee has received independent legal advice from a relevant
independent adviser (within the meaning of the Employment Rights (Dispute
Resolution) Act 1998) as to the full nature, terms and effect of this
Agreement and in particular its effect on his ability to pursue his rights
before an Employment Tribunal.
20. The adviser was and is ▇▇▇▇ ▇ ▇▇▇▇▇▇▇ of ▇▇▇ and ▇▇▇▇▇▇▇▇▇ Solicitors of ▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ("Relevant Independent Adviser") a solicitor of the
Supreme Court and who has in force an indemnity provided for members of the
Solicitors' profession covering the risk of a claim by the Employee in
respect of loss arising in consequence of the advice.
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21. The conditions regulating compromise agreements under Section 203 of the
Employment Rights ▇▇▇ ▇▇▇▇ as amended by Section 10(1) of the Employment
Rights (Dispute Resolution Act 1998), Section 77 of the Sex Discrimination
▇▇▇ ▇▇▇▇, Section 72 of the Race Relations ▇▇▇ ▇▇▇▇, Section 288(2B) of the
Trade Union and Labour Relations (Consolidation) ▇▇▇ ▇▇▇▇, Section 9(3) of
the Disability Discrimination ▇▇▇ ▇▇▇▇, Regulation 35(2) of the Working
Time Regulations 1998 Section 49 of the National Minimum Wage ▇▇▇ ▇▇▇▇ and
Section 18 of the Employment Relations ▇▇▇ ▇▇▇▇ are satisfied.
22. The Company shall receive the benefit of all provisions of this Agreement
on its behalf and as trustee on behalf of all other relevant Group
Companies.
23. In this Agreement the words "Group company/companies" shall mean the
Company together with all companies which are at the Termination Date or
were at the relevant time either:
23.1 a holding company of the Company as defined by section 736 of the
Companies Act 1985 or any statutory modification or re-enactment
thereof ("Holding Company");
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23.2 a subsidiary company of the Company as defined by section 736 of the
Companies Act 1985 or any statutory modification or re-enactment
thereof ("Subsidiary Company); and/or
23.3 a company in which the Company or any Holding Company is directly or
indirectly beneficially interested in ten percent or more of that
company's issued ordinary share capital ("Associated Company").
24. The validity, construction and performance of this contract will be
governed by English Law.
IN WITNESS whereof the parties have set their hands the day and date first
before written
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SCHEDULE 1
The Directors
Authoriszor Inc
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Dear Sirs
I hereby resign as a director of all Group companies in which I hold such
office, from the position of Chief Financial Officer of the Company and from the
position of Company Secretary with effect from the date of this letter.
I confirm no sums are outstanding to me in connection with my office(s) and I
have no claims in connection with my office(s) or loss of offices).
Yours faithfully
▇▇▇▇▇▇ CUSSONS
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SOLICITORS CERTIFICATE
----------------------
I hereby certify as follows:-
1. I am a solicitor of the Supreme Court of England and Wales holding a
current practising certificate.
2. I have advised ▇▇▇▇▇▇ Cussons of ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ of the terms and effects of the Agreement appearing above
and in particular to its effect on his ability to pursue a claim to an
Employment Tribunal following its signing.
3. I am not acting (and have not acted) in relation to this matter for the
Company and/or any Group company.
4. There is in force a contract of insurance or an indemnity provided for
members of the Solicitors' profession covering the risk of a claim by
▇▇▇▇▇▇ Cussons in respect of loss arising in consequence of the advice I
have given.
5. The conditions regulating Compromise Agreements under the relevant
legislation as set out in clause 21 of this Agreement have accordingly been
satisfied.
Signed..............................
Name of Solicitor: ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
Firm: ▇▇▇ and ▇▇▇▇▇▇▇▇▇ Solicitors
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇
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SIGNED on behalf of )
AUTHORISZOR INC )
in the presence of:- )
SIGNED by )
▇▇▇▇▇▇ CUSSONS in the )
presence of:- )
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