EXHIBIT 10.5
DATED July 11, 2005
ICURIE HOLDINGS LTD.
and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SERVICE AGREEMENT
THIS AGREEMENT is made as of July 11, 2005
BETWEEN:
(1) ICURIE HOLDINGS LTD. (the "COMPANY" or "EMPLOYER"); and
(2) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "EXECUTIVE").
RECITAL
The Company shall employ the Executive and the Executive shall serve the
Employer as Chief Executive Officer of the Company on the following terms and
subject to the following conditions (the "AGREEMENT"). The Company shall act as
agent and paymaster for the Employer in respect of its rights and duties to the
Executive as its employee. The parties acknowledge and agree that the Executive
shall also be appointed as President of iCurie, Inc., a Nevada corporation
("ICURIE, INC."), the corporate parent and sole stockholder of the Company.
IT IS AGREED AS FOLLOWS:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires the following
expressions shall have the following meanings:
"ASSOCIATED COMPANY"
(a) a company which is not a Subsidiary of iCurie, Inc. but whose
issued equity is owned as to at least twenty per cent (20%) by
iCurie, Inc. or one of its Subsidiaries; or
(b) a Subsidiary (as defined below)
"BOARD"
the board of directors of the corporation in question;
"GROUP"
iCurie, Inc. and its Subsidiaries, including the Company, for the time
being and "GROUP COMPANY" means any one of them;
"SUBSIDIARY"
means any person or entity of which a majority of the outstanding voting
securities or other voting equity interests are owned, directly or
indirectly, by iCurie, Inc.
1.2 Any reference to a statutory provision shall be deemed to include a
reference to any statutory modification or re-enactment of it.
1.3 The headings in this Agreement are for convenience only and shall not
affect its construction or interpretation.
1.4 References in this Agreement to a person include a body corporate and an
incorporated association of persons and references to a company include
any body corporate.
1.5 References in this Agreement to the laws, statutes and regulations of the
United Kingdom are applicable only to the extent such laws, statutes and
regulations are applicable due to the Executive's employment with the
Company or the Executive's employment location in the United Kingdom.
2. TERM OF EMPLOYMENT
2.1 The term of this Agreement (subject to termination as provided below)
shall continue from the date hereof until January 1, 2007.
2.2 The Executive represents and warrants that he is not bound by or subject
to any contract, court order, agreement, arrangement or undertaking which
in any way restricts or prohibits him from entering into this Agreement or
performing his duties under it.
3. DUTIES
3.1 The Executive shall during his employment under this Agreement:
3.1.1 perform the duties and exercise the powers which the Board of the
Company may from time to time properly assign to him in his capacity
as Chief Executive Officer of the Company, or in connection with the
conduct and management of the business of any Group Company
(including serving on the board of such Group Company or on any
other executive body or any committee of such a company); and
3.1.2 do all in his power to promote, develop and protect the business of
the Company and any Group Company and at all times and in all
respects conform to and comply with the proper and reasonable
directions and regulations of the Board of the Company.
3.2 The Executive shall give to the Board of the Company such information
regarding the affairs of the Group as it shall require, and in any event,
shall be subject to the authority and direction of the Board of the
Company and shall report regularly and keep the Board of the Company
informed.
3.3 The Executive shall carry out his duties and exercise his powers jointly
with any other executives appointed by the Board of the Company to act
jointly with him and the Board of the Company may at any time require the
Executive to cease performing or exercising the said or any duties or
powers.
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3.4 The Executive shall work in any place within the United Kingdom which the
Board of the Company may require and he may be required to travel abroad
when required by the Group for the proper performance of his duties. The
Employer acknowledges that the Executive is not currently a resident or
citizen of the United States, nor is it currently contemplated that the
Executive will be required to relocate to the United States.
3.5 If the Employer requires the Executive to work permanently at a place
which necessitates a move from his present residence, the Company will
reimburse the Executive for all documented moving expenses directly and
reasonably incurred.
4. HOURS OF WORK
4.1 The Executive shall have no normal hours of work but is required to devote
such time to his work, as set forth in Section 13, as is necessary for the
proper performance of his duties. The Executive shall receive no
additional payments from hours worked. The Executive acknowledges that he
holds a senior executive position with certain autonomous decision-taking
powers and that accordingly he is not subject to regulation 4 (1) of the
Working Time Regulations 1998. Without prejudice to that, the Executive
accepts that by signing this Agreement he has agreed that (insofar as it
would apply) regulation 4 (1) shall not apply unless the Executive
withdraws such Agreement by giving to the Employer not less than three
months prior notice in writing.
5. GRATUITIES AND CODES OF CONDUCT
5.1 The Executive shall not directly or indirectly accept any commission,
rebate, discount or gratuity in cash or in kind from any person who has or
is having a business relationship with the Employer or any Group Company.
5.2 The Executive shall comply (and procure that his spouse and minor children
shall comply) with all applicable rules and regulations of the United
States securities laws and the regulations of any market or quotation
service on which equity of iCurie, Inc. is listed or quoted, and any codes
of conduct of the Group for the time being in force and any other relevant
regulatory authority.
5.3 The Executive, on behalf of the Company, shall at all times comply with
the provisions of the Financial Services and Markets ▇▇▇ ▇▇▇▇ and the
rules, regulations, usages and guidance of the FSA (including, without
limitation, the contents of the FSA's Handbook) as the same shall apply to
his activities and those of the Employer from time to time (and any other
legislation, rules and regulations, replacing or supplementing the same or
to which the Company and its staff are otherwise bound). By signing this
Agreement, the Executive also agrees to be bound by the provisions of the
compliance manual or similar regulations of the Employer from time to time
in force. The Executive hereby acknowledges that the Employer may treat
any material non-compliance on his part as gross misconduct entitling it,
to terminate this employment without notice.
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6. REMUNERATION
6.1 In consideration of the services rendered to the Employer and the mutual
promises and covenants herein contained, Executive shall receive the
remuneration set forth in this Section 6.
6.2 The Company shall pay to the Executive a salary at the rate of $262,500
USD per year, subject to all applicable deductions as may be required by
law for tax and social security or national insurance contributions.
6.3 The Executive's salary shall accrue from day to day and be payable in
accordance with the Company's normal payroll practices.
6.4 The Executive's salary shall be reviewed at least annually. The
undertaking of a salary review does not confer a contractual right
(whether express or implied) to any increase in salary and the Executive
acknowledges that any salary increase is at the discretion of the
Employer.
6.5 As of the date hereof, the Executive shall be granted incentive
compensation in the form of (i) an option to purchase 326,779 shares of
common stock of iCurie, Inc., pursuant to the terms, conditions and
limitations of the iCurie, Inc. 2005 Stock Incentive Plan (the "Plan") and
the grant agreement attached hereto as Exhibit A and (ii) a grant of
1,633,897 restricted shares of common stock in iCurie, Inc., pursuant to
the terms, conditions and limitations of the Plan and the grant agreement
attached hereto as Exhibit B.
6.6 The Executive shall receive a "closing bonus" in the form of (i) a cash
bonus, payable by the Company, in the amount of $40,000 USD on September
1, 2005 (or, if the Executive is terminated for any reason prior to such
date, within thirty (30) days of such termination) subject to deductions
as detailed at clause 6.2, and (ii) a grant of 45,455 restricted shares of
common stock of iCurie, Inc., pursuant to the terms, conditions and
limitations of the Plan and the grant agreement attached hereto as Exhibit
B.
6.7 As of the date hereof, the Executive shall be paid accrued but unpaid
salary in the form of (i) a cash payment of $30,207 USD subject to
deductions as detailed at clause 6.2 and (ii) a grant of 34,326 shares of
common stock of iCurie, Inc., pursuant to the terms, conditions and
limitations of the Plan and the grant agreement attached hereto as Exhibit
B.
6.8 The Executive shall be entitled to receive a bonus for calendar year 2005
and calendar year 2006 as set out in Schedule 2 to this Agreement;
provided, however, that (a) in the event the Executive voluntarily
terminates employment prior to the date a bonus is paid, the Executive
shall not be entitled to receive such bonus, and (b) in the event the
Company terminates the Executive prior to the date a bonus is paid, the
Executive shall be entitled to receive any earned but unpaid bonus which
shall be paid within 30 days of the date the Executive's employment is
terminated. Bonuses in any calendar year shall not confer any right upon
the Executive to be considered for or to receive a bonus in any subsequent
calendar year. The Employer reserves the right to amend the terms of any
bonus scheme from time to time.
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7. PENSION SCHEME
7.1 The Executive shall be entitled to participate in any retirement schemes
as are provided to members of senior management of the Company from time
to time; provided, however, that the parties hereto acknowledge and agree
that the Executive will be entitled to participate in a retirement plan
that permits employee elective deferrals or a similar defined contribution
plan as is customary in the Executive's location of employment, to the
extent such plan can be established by the Company or iCurie, Inc. without
undue costs, as determined by the Board of the Company.
8. OTHER BENEFITS
8.1 The Executive is entitled to membership of the following schemes (each
referred to below as an "INSURANCE SCHEME"):
8.1.1 a medical expenses insurance scheme providing such cover for the
Executive and his spouse and children under the age of eighteen (18)
as the Company may from time to time notify to him;
8.1.2 a life insurance scheme under which a lump sum benefit shall be
payable on the Executive's death while the Agreement continues; the
benefit of which shall be paid to such dependants of the Executive
or other beneficiary as the trustees of the scheme select at their
discretion, after considering any beneficiaries identified by the
Executive in any expression of his wishes delivered to the trustees
before his death. The benefit is equal to four (4) times the
Executive's basic annual salary at his death but basic annual salary
for this purpose shall not exceed the Inland Revenue limits; and
8.1.3 a personal accident insurance scheme providing such cover for the
Executive as the Company may from time to time notify to him.
8.2 Benefits under any insurance scheme shall be subject to the rules of the
scheme(s) and the terms of any applicable insurance policy and are
conditional upon the Executive complying with and satisfying any
applicable requirements of the insurers. Copies of these rules and
policies and particulars of the requirements shall be provided to the
Executive on request. The Company shall not have any liability to pay any
benefit to the Executive under any insurance scheme unless it receives
payment of the benefit from the insurer under the scheme.
8.3 Any insurance scheme which is provided for the Executive is also subject
to the Company's right to alter the cover provided or any term of the
scheme or to cease to provide (without replacement) the scheme at any time
if in the opinion of the Board the state of health of the Executive is or
becomes such that the Company is unable to insure the benefits under the
scheme at the normal premiums applicable to a person of the Executive's
age.
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8.4 The provision of any insurance scheme does not in any way prevent the
Company from terminating this Agreement in accordance with the provisions
of this Agreement even if to do so would deprive the Executive of
membership of or cover under any such scheme.
9. HOUSING/ COMPANY CAR
9.1 The executive shall be provided with a monthly housing allowance for 12
months if the Executive is required to relocate to London, England. Such
monthly allowance shall be in an amount reasonably determined by the Board
of the Company, taking into account customary housing allowances provided
to non-United Kingdom citizens who (i) are required to relocate to London,
England, and (ii) are executives of similar level in companies of similar
size as the Employer.
9.2 The Company shall provide the Executive with a car allowance in the amount
of $350 per month; provided, however, that in the event the Executive is
required by the Company to relocate out of the Executive's current country
of residence, such allowance shall increase to $750 per month during the
period of such relocation.
9.3 The Company shall pay all normal servicing, insurance and running expenses
in relation to the car and all fuel expenses incurred by the Executive in
the performance of his duties.
9.4 The Executive shall take good care of the car and shall observe the terms
and conditions of the insurance policy relating to it.
9.5 The Executive shall inform the Company immediately if he is disqualified
from holding a driving license and the Executive shall not have use of a
car during any period of disqualification. The Executive shall have no
entitlement during any such period to the car allowance.
10. EXPENSES
The Employer shall reimburse or procure that the Executive is reimbursed:
10.1 all reasonable traveling, hotel and other expenses wholly and necessarily
incurred by him in the performance of his duties under this Agreement; and
10.2 the cost of subscription to all professional bodies to which he is obliged
to belong in order to maintain his professional qualifications on
production of appropriate receipts, if required, by the Employer.
11. HOLIDAYS
11.1 The Executive is entitled to holiday days with pay every calendar year in
addition to public holidays as follows:
Year 1: 20 days
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Year 2: 20 days
The Employer's holiday year runs from January 1 to December 31.
11.2 The Executive's holiday entitlement is inclusive of his statutory
entitlement which, to the extent applicable, is twenty (20) days per
annum. When calculating the Executive's statutory entitlement bank and
public holidays are taken into account. The statutory entitlement cannot
be carried over from one holiday year to the next and no pay in lieu can
be made to the Executive.
11.3 During the first year of the Executive's employment the Executive's
statutory holiday entitlement, to the extent applicable, will accrue pro
rata monthly in advance. Where this calculation results in fractions of
days the amount of leave which can be taken is rounded up to the next half
day. Any rounded up element is deducted from the leave remaining.
11.4 Save as provided for in clause 11.3 above, the Executive's entitlement to
holiday accrues pro rata throughout each holiday year (disregarding
fractions of days). The Executive will be deemed to have taken any
statutory holiday first.
11.5 Any entitlement to holiday over and above any statutory entitlement
remaining at the end of any holiday year shall lapse and no payment in
lieu will be made for accrued untaken holiday/may be carried forward to
the next holiday year but no further/will be paid in lieu.
11.6 If the Executive has taken holiday in excess of his entitlement on
termination of employment he will be required to give account for it and
the Company will make a deduction from his final salary payment
accordingly. If the Executive has accrued holiday owing to him, the
Employer may at its discretion, require him to take the outstanding
holiday during any notice period or make a payment in lieu of it.
11.7 If the Executive's employment is terminated without notice, he will not be
entitled to holiday pay for holiday which would have accrued during the
notice period, had he continued to be employed throughout that time.
11.8 There are no formal notice requirements for taking holiday but the
Executive is expected to take his holiday at a time or times convenient to
the Employer.
12. ILLNESS
12.1 The Executive shall continue to be paid during sickness absence (such
payment to be inclusive of any statutory sick pay or social security
benefits to which he may be entitled) for a total of up to ten (10) days
per calendar year.
12.2 Thereafter the Executive shall continue to be paid salary at the
discretion of the Employer.
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]
12.3 The Executive will cease to accrue holiday, subject to any entitlement
under the applicable law if he has been absent due to sickness, for four
(4) consecutive weeks or more.
12.4 If the Executive is incapable of performing his duties by reason of injury
sustained wholly or partly as a result of negligence, nuisance or breach
of any statutory duty on the part of a third party and the Executive
recovers an amount by way of compensation for loss of earnings from that
third party, he shall immediately pay that amount to the Company.
12.5 The Employer shall be entitled to require the Executive to undergo
examinations by a medical adviser appointed or approved by the Employer
and the Executive authorizes the medical adviser and/or will provide such
consents as are necessary to disclose to the Employer the results of such
examinations.
13. RESTRICTIONS DURING EMPLOYMENT
13.1 During the continuance of his employment under this Agreement the
Executive shall unless prevented by incapacity devote his whole time and
attention to the business of the Employer and shall not without the prior
written consent of the Board of the Company:
13.1.1 engage in any other business; or
13.1.2 be concerned or interested in any other business which is or shall
be of a similar nature to or competitive with that carried on by
the Employer or any Group Company or which is a supplier or
customer of the Employer or Group Company in relation to its goods
or services; or
13.1.3 solicit the custom of, canvass, approach or deal with, in
competition with the Employer or any Group Company, any person
(including any company, firm, organization or other entity) to whom
the Employer or any Group Company supplies services or goods or
with whom the Employer or any Group Company is in negotiations or
discussions regarding the possible supply of services or goods; or
13.1.4 discourage any such person referred to in clause 13.1.3 above from
conducting or continuing to conduct business with the Employer or
any Group Company on the best terms available to the Employer or
any Group Company; or
13.1.5 induce or attempt to induce any director or senior employee of the
Employer or any Group Company and with whom the Executive has
material dealings in the course of his employment, to leave the
employment of the Employer or any Group Company; or
13.1.6 take any steps which impair or might reasonably be thought by the
Employer, to impair the Executive's ability to act at all times in
the best interests of the Employer;
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provided that nothing in this clause shall preclude the Executive from
holding or being otherwise interested in any shares or other securities of
any company which is publicly quoted or traded on a recognized investment
exchange or quotation service so long as the interest of the Executive in
such shares or other securities does not extend to more than five per cent
(5%) of the total amount of such shares or securities.
13.2 If the Executive does, with the Company Board's written consent, carry out
other work, he must notify the Board of the number of additional hours he
is working. The Executive hereby represents and warrants, and the Employer
hereby acknowledges, that (i) as of the date of this Agreement, the
Executive is a member of the board of directors of Teleplus Enterprises
Inc. (the "Board Assignment"), (ii) the Executive will not spend more than
four (4) days per year to fulfill its duties under the Board Assignment,
and (iii) the Executive's duties and obligations to the Board Assignment
will in no way interfere with the Executive's duties and obligations to
the Employer.
13.3 If during his employment under this Agreement the Executive shall cease to
be a director of the Employer (otherwise than by reason of his death,
resignation or disqualification pursuant to the articles of association of
the Employer or by statute or court order) his employment shall continue
and the terms of this Agreement (other than those relating to the holding
of office of director) shall continue in full force and effect and the
Executive shall have no claims against the Employer in respect of his
ceasing to be a director.
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14. INTELLECTUAL PROPERTY
14.1 This clause shall continue in force after termination of this Agreement in
respect of all Intellectual Property (as defined at 14.2) created by the
Executive in the course of his employment by the Employer.
14.2 Any and all inventions, original works, technologies, reports, memoranda,
studies, writings, articles, plans, designs, specifications, exhibits,
software code, or other materials prepared by the Executive in his
performance under this Agreement (the "Intellectual Property") shall be
the exclusive property of the Company; and the Executive hereby assigns
all right, title, and interest in the same to the Company. To the extent
any of the Intellectual Property includes material subject to copyright
protection, such materials have been specially commissioned by the. To the
extent such material include material subject to copyright, patent, trade
secret, or other proprietary rights protection, the Executive hereby
irrevocably and exclusively assigns to the Company, its successors, and
assigns, all right, title, and interest in and to all such materials. To
the extent any of the Executive's rights in the same, including without
limitation any moral rights, are not subject to assignment hereunder, the
Executive hereby irrevocably and unconditionally waives all enforcement of
such rights. The Executive shall execute and deliver such instruments and
take such other actions as may be required to carry out and confirm the
assignments contemplated by this section and the remainder of this
Agreement. All documents, magnetically or optically encoded media, and
other tangible materials created by the Executive as part of its services
under this Agreement shall be owned by the Company.
14.3 Executive hereby irrevocably appoints the Company to be the Executive's
attorney in the Executive's name to execute all documents and do all acts
and things as may be necessary to grant the Company the full benefit of
this clause.
15. CONFIDENTIALITY
15.1 The Executive shall not (except in the proper performance of his duties)
during or after his employment has ended divulge to any person or
otherwise make use of (and shall use his best endeavors to prevent the
publication or disclosure of) any trade secret or secret manufacturing
process or any confidential information concerning the business or
finances of the Employer or any Group Company or any of their dealings,
transactions or affairs or any trade secret or secret manufacturing
process or any such confidential information concerning any of their
suppliers, agents, distributors or customers.
15.2 Confidential information includes, but is not limited to: information
about the Employer disclosed to the Executive, known by the Executive or
developed by the Executive, alone or with others, in connection with his
engagement by the Employer, which is not generally known to the industry
in which the Employer or any Group Company is or may become engaged about
the Employer's or any Group Company's products, processes, and services,
including but not limited to, information relating to investors, financial
information of the Employer or Group Company, customers, sources of
supply, personnel, sources or methods of financing, marketing, pricing,
merchandising, interest rates, or sales.
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15.3 The restrictions in clauses 15.1 and 15.2 shall not apply to information
which:
15.3.1 comes into the public domain otherwise than by a breach by the
Executive of his obligations under this Agreement; or
15.3.2 must be disclosed by any applicable law, to the extent of such
required disclosure.
16. DATA PROTECTION
16.1 The Executive acknowledges that the Employer and the Group will hold
personal data relating to the Executive such data will include the
Executive's employment application, address, references, bank details,
performance appraisals, work, holiday and sickness records, next of kin,
salary reviews, remuneration details and other records (which may, where
necessary, include sensitive personal data relating to the Executive's
health, and data held for equal opportunities purposes). The Employer will
hold such personal data for personnel administration and management
purposes and to comply with the obligations regarding the retention of
Executive/worker records. The Executive's right of access to such data is
as prescribed by law.
16.2 The Executive hereby undertakes and agrees that the Employer may process
personal data relating to personnel administration and management
purposes, and may, when necessary for those purposes, make such data
available to its advisers, to third parties providing products and/or
services to the Employer, (such as IT systems suppliers, pensions,
benefits and payroll administrators) and as required by law. Further, the
Executive hereby agrees that the Employer may transfer such data to and
from any Group Company. By signing this Agreement, the Executive expressly
consents to the collection, transfer and use of such data in accordance
with this clause 16.
17. MONITORING
17.1 The Executive acknowledges that the Employer and the Group may monitor
messages sent and received via email, the Internet and voicemail systems
to ensure that the Executive is complying with the Employer's policy for
use by its employees of these systems.
18. TERMINATION OF EMPLOYMENT
18.1 Notwithstanding clause 2.1 above, the Executive's employment may be
terminated by either party giving to the other not less than six months
notice in writing.
18.2 The Employer may at any time and in its absolute discretion terminate the
Agreement with immediate effect and make a payment in lieu of notice. This
payment shall comprise of the Executive's 6-month salary (at the rate
payable when this option is exercised) and shall not include any un-earned
bonus, pension contributions or any other benefits except for medical
insurance, life insurance and housing for a period of 6 months (to the
extent Executive was entitled to receive a housing allowance for such 6
month period) and shall be subject to deductions for income tax and
national insurance contributions as appropriate (the "Payment in Lieu").
The Executive will not, under any circumstances,
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have any right to Payment in Lieu unless the Employer has exercised its
option to pay in lieu of notice and the Executive has delivered a general
release of Employer in the form and substance reasonably satisfactory to
the Employer.
18.3 The Payment in Lieu may, at the Employer's sole discretion, be made at the
times the Employer would have made payments to the Executive had notice
been worked or, if notice has previously been given, at the times the
Employer would have made payments to the Executive during the remainder of
the period of notice. During any such period the Executive is required to
keep the Employer informed on a monthly basis as to his earnings and the
Executive agrees that the Employer may deduct any monies he earns during
that period from the Payment in Lieu.
18.4 The employment of the Executive may be terminated by the Employer without
notice or Payment in lieu of Notice if the Executive:
18.4.1 is guilty of any serious misconduct that affects the interests of
the Employer or any Group Company to which he is required to render
services under this Agreement; or
18.4.2 fails or neglects efficiently and diligently to discharge his
duties or commits any serious or repeated breach or non-observance
by the Executive of any of the provisions contained in this
Agreement or the Executive's duties as an executive officer of
iCurie, Inc.; or
18.4.3 has an interim receiving order made against him, becomes bankrupt
or makes any composition or enters into any deed of arrangement
with his creditors; or
18.4.4 is charged with any arrestable criminal offence (other than an
offence under road traffic legislation for which a fine or
non-custodial penalty is imposed); or
18.4.5 is disqualified from holding office in another company by reason of
an order of a court of competent jurisdiction; or
18.4.6 shall become adjudicated mentally incompetent or become a patient
under the United Kingdom Mental Health ▇▇▇ ▇▇▇▇; or
18.4.7 is convicted of an offence under the United Kingdom Criminal
Justice ▇▇▇ ▇▇▇▇ in relation to insider dealings or under any other
present or future statutory enactment or regulations relating to
insider dealings or similar offences under any U.S. or other law or
regulation; or
18.4.8 is in breach of the Model Code on directors' dealings in listed
securities, including securities dealt on the OFEX trading facility
and securities dealt on the Alternative Investment Market published
by the London Stock Exchange Limited or the applicable rules and
regulations of the United States securities laws and the
regulations of any market or quotation service on which equity of
iCurie, Inc. is listed or quoted; or
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18.4.9 ceases to be a director of the Employer or iCurie, Inc. otherwise
than at the request, or with the prior consent, of the Employer or
iCurie, Inc. as the case may be.
18.5 Any delay by the Employer in exercising the right to terminate without
notice is not a waiver thereof.
19. SUSPENSION AND GARDEN LEAVE
19.1 The Employer may suspend the Executive at its discretion on full pay to
allow the Employer to investigate any complaint made against the Executive
in relation to his employment with the Employer.
19.2 Provided the Executive continues to enjoy his full contractual benefits
and receive his pay in accordance with this Agreement, the Employer may in
its absolute discretion do all or any of the following during the notice
period or any part of the notice period, after the Executive or the
Employer has given notice of termination to the other, without breaching
this Agreement or incurring any liability or giving rise to any claim
against it:
19.2.1 exclude the Executive from the premises of the Employer and/or the
Group;
19.2.2 require the Executive to carry out only specified duties
(consistent with his status, role and experience) or to carry out
no duties;
19.2.3 announce to any or all of its employees, suppliers, customers and
business partners that the Executive has been given notice of
termination or has resigned (as the case may be);
19.2.4 prohibit the Executive from communicating in any way with any or
all of the suppliers, customers, business partners, employees,
agents or representatives of the Employer or the Group until his
employment has terminated except to the extent he is authorized to
do so by the Board in writing;
19.2.5 require the Executive to resign his directorship of any Group
Company;
19.2.6 require the Executive to comply with any other reasonable
conditions imposed by the Employer.
The Executive will continue to be bound by all obligations (whether
expressed or implied) owed to the Employer under the terms of the
Agreement or as an employee of the Company.
20. RESIGNATION AND RETURN OF COMPANY PROPERTY
20.1 Upon the termination by whatever means of this Agreement the Executive
shall:
20.1.1 immediately resign from his office as a director of the Employer
and from such offices held by him in any Group Company without
claim for compensation; and
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20.1.2 immediately deliver to the Company all credit cards motor-cars,
keys, computer media and other property, in whatever form, of or
relating to the business of the Employer or of any Group Company
which may be in his possession or under his power or control.
20.2 If the Executive fails to comply with clause 20.2.5 and 21.1.1 the Company
is hereby irrevocably authorized to appoint some person in his name and on
his behalf to sign and complete any documents or do any thing necessary to
give effect to this clause.
20.3 The Executive shall not without the consent of the Employer at any time
after the termination of this Agreement represent himself still to be
connected with the Employer or any Group Company.
21. RECONSTRUCTION OR AMALGAMATION
If the employment of the Executive under this Agreement is terminated by
reason of the liquidation of the Employer for the purpose of
reconstruction or amalgamation and the Executive is offered employment
with any concern or undertaking resulting from the reconstruction or
amalgamation on terms and conditions not less favorable than the terms of
this Agreement then the Executive shall have no claim against the Employer
or any Group Company in respect of the termination of his employment under
this Agreement.
22. RESTRICTIONS
22.1 Definitions
In this clause the following words shall have the following meanings:
"TERMINATION DATE"
the date on which the employment terminates;
"PERSON"
includes any individual, company, firm, organization or other entity;
"AREA"
any country where on the Termination Date the Employer or a Group Company
was supplying goods and/or services;
"CUSTOMER"
any Person to whom the Employer or a Group Company supplied goods or
services during the 6 months preceding the Termination Date and with whom
at any time during such period the Executive was actively involved in the
course of his employment;
"PROSPECTIVE CUSTOMER"
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any Person with whom the Employer or a Group Company had negotiations or
discussions regarding the possible supply of goods or services during the
6 months immediately preceding the Termination Date and with whom at any
time during such period the Executive was actively involved in the course
of his employment.
22.2 In order to protect the goodwill, confidential information, trade secrets
and business connections of the Employer or a Group Company the Executive
covenants with the Employer (and as trustee for each Group Company) that:
22.2.1 NON-COMPETITION
the Executive shall not for a period of 9 months from the
Termination Date directly or indirectly be interested or concerned
in any business which is carried on in the Area and which:
(a) concerns the business of the Employer or any Group Company and
with which the Executive was actively involved at any time
during 6 months ending on the Termination Date; or
(b) is competitive or likely to be competitive with the business
of the Employer or a Group Company being carried on at the
Termination Date and with which the Executive was actively
involved during the 6 months ending on the Termination Date.
For this purpose, the Executive is concerned in a business if:
(c) he carries it on as principal or agent; or
(d) he is a partner, director, employee, secondee, consultant or
agent in, of or to any Person who carries on the business; or
(e) he has any direct or indirect financial interest (as
shareholder or otherwise) in any Person who carries on the
business.
22.2.2 NON-SOLICITATION
the Executive shall not for a period of 9 months from the
Termination Date directly or indirectly:
(a) canvass or solicit business or approach any Customer or
Prospective Customer in respect of goods of similar type to
those being manufactured or dealt in or services similar to
those being provided by the Employer or a Group Company as at
the Termination Date;
(b) seek to do business or deal with any Customer or Prospective
Customer in respect of goods of similar type to those being
manufactured or dealt in or
15
services similar to those being provided by the Employer or a
Group Company as at the Termination Date;
(c) canvass or solicit business from or make an approach to any
supplier of the Employer or a Group Company with whom the
Executive was actively involved during the 6 months ending on
the Termination Date to cease to supply, or to restrict or
vary the terms of supply to the Employer or a Group Company or
otherwise interfere with the relationship between such a
supplier and the Employer or a Group Company; or
(d) accept employment with or act as consultant for any customer/
client.
22.2.3 NON-POACHING
the Executive shall not for a period of 9 months after the
Termination Date directly or indirectly:
(a) induce or attempt to induce any employee of the Employer or a
Group Company who is engaged in any business activity carried
on by the Employer or a Group Company at the Termination Date
and with whom the Executive during the 6 months ending on the
Termination Date had dealings in the course of his employment,
to leave the employment of the Employer or a Group Company
(whether or not this would be a breach of contract by that
employee); or
(b) engage, attempt to engage, employ, attempt to employ or offer
employment or work (and in each case whether directly or
indirectly, including through an employment agency or other
intermediary) to any employee of the Employer or a Group
Company who is engaged in any business activity carried on by
the Employer or a Group Company at the Termination Date and
with whom the Executive during the 6 months ending on the
Termination Date had dealings in the course of his employment.
22.3 The restrictions in this clause are considered by the parties to be
reasonable and the validity of each sub-clause shall not be affected if
any of the others is invalid. If any of the restrictions is void but would
be valid if some part of the restriction were deleted, the restriction in
question shall apply with such modification as may be necessary to make it
valid.
22.4 The Executive acknowledges that the provisions of this clause are no more
extensive than is reasonable to protect the Employer or the Group.
23. SEVERABILITY
If any of the provisions of this Agreement become invalid or unenforceable
for any reason by virtue of applicable law the remaining provisions shall
continue in full force and effect and the Employer and the Executive
hereby undertake to use all reasonable
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endeavors to replace any legally invalid or unenforceable provision with a
provision which will promise to the parties (as far as practicable) the
same commercial results as were intended or contemplated by the original
provision.
24. THIRD PARTIES
No third party shall have the right to enforce the provisions of this
Agreement pursuant to the Contracts (Rights of Third Parties) ▇▇▇ ▇▇▇▇ or
any other statutory or common law.
25. NOTICES
25.1 Any notice required or permitted to be given under this Agreement shall be
given in writing delivered personally or sent by first class post pre-paid
recorded delivery (air mail if overseas) or by facsimile to the party due
to receive such notice at, in the case of the Employer, both of the
Company's and iCurie, Inc.'s registered offices from time to time and, in
the case of the Executive, his address as set out in this Agreement (or
such address as he may have notified to the Employer in accordance with
this clause).
25.2 Any notice delivered personally shall be deemed to be received when
delivered to the address provided in this Agreement and any notice sent by
pre-paid recorded delivery post shall be deemed (in the absence of
evidence of earlier receipt) to be received 2 days after posting and in
proving the time of dispatch it shall be sufficient to show that the
envelope containing such notice was properly addressed, stamped and
posted. A notice sent by facsimile shall be deemed to have been received
on receipt by the sender of confirmation in the transmission report that
the facsimile had been sent.
26. STATUTORY INFORMATION
Schedule 1 to this Agreement sets out information required to be given to
the Executive by the Employment Rights ▇▇▇ ▇▇▇▇, to the extent such Act
applies to the Executive's employment hereunder.
27. MISCELLANEOUS
27.1 This Agreement is governed by and shall be construed in accordance with
the laws of England.
27.2 The parties to this Agreement submit to the non-exclusive jurisdiction of
the English courts.
27.3 This Agreement contains the entire understanding between the parties and
supersedes all previous agreements and arrangements (if any) relating to
the employment of the Executive by the Employer (which shall be deemed to
have been terminated by mutual consent), including without limitation, any
previous employment contract or arrangement between the Executive and the
Employer or any Group Company.
27.4 The Executive authorizes the Employer to deduct from any remuneration
payable to the Executive under this Agreement any sums due from him to the
Employer or any Group
17
Company including the cost of repairing any damage to Employer or any
Group Company property caused by the Executive and any loss suffered by
the Employer or any Associated Company as a result of negligence or breach
of duty by the Executive.
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SCHEDULE 1
Statement Of Particulars Pursuant To The Employment Rights ▇▇▇ ▇▇▇▇
1 The Executive's period of continued employment with the Company commenced
on June 1, 2005. A period of employment with a previous employer does not
count as part of the Executive's continuous employment with the Employer.
2 There is no formal disciplinary or grievance procedure applicable to this
position. Any grievance which the Executive wishes to exercise or any
disciplinary action taken by the Employer will be dealt with by the
Chairman of the Board. If the Executive is dissatisfied with any decision
he can within five (5) working days of that decision appeal to the entire
Board whose decision shall be final and binding. For the avoidance of
doubt any disciplinary or grievance procedure does not form part of the
Service Agreement.
3 The Executive may be required to work overseas for periods exceeding one
(1) month but there are currently no particulars to be entered.
4 The Employer is not a party to any collective agreement which affects the
Executive's employment.
5. There is no contracting-out certificate in force.
SCHEDULE 2
Bonus Scheme - Calendar Year 2005 Bonus: maximum of $262,500 with fifty percent
(50%) of the amount due for each performance goal to be paid in cash and fifty
percent (50%) paid in unrestricted shares of common stock in iCurie, Inc.,
valued at $0.88 per share (solely for bonus purposes and irrespective of fair
market value), or the same number of options granted with a nominal exercise
price per share, and payable in February, 2006.
Performance Goals Weight of Bonus
----------------- ---------------
Successful execution of a definitive contract with Asia
Vital Components ("AVC") substantially similar to the terms
of the April, 2005 letter of intent with AVC. 20% of Bonus
Achieving the revenue targets set forth in the Private
Placement Memorandum of the Company dated May, 2005 ("PPM") 20% of Bonus
Successful execution of a commercial contract with Daan or
any other company in the display industry. 20% of Bonus
Shipments of commercial volumes to the display industry
exceed targets developed by the Compensation Committee of
the Board of iCurie, Inc., or if no such committee is
established, the Board of iCurie, Inc. 40% of Bonus
Bonus Scheme - Calendar Year 2006 Bonus: maximum of $525,000 with fifty percent
(50%) of the amount due for each performance goal to be paid in cash and fifty
percent (50%) paid in unrestricted shares of common stock in iCurie, Inc.,
valued at $0.88 per share (solely for bonus purposes and irrespective of fair
market value), or the same number of options granted with a nominal exercise
price per share, and payable in February, 2007.
Performance Goals Weight of Bonus
----------------- ---------------
Achieving the pre-tax pre-dividend income levels set forth
in the PPM. 50% of Bonus
Exceeding the revenue and income levels set forth in the
PPM. 50% of Bonus
In addition to the equity compensation payable as set forth above,
Executive will be entitled to the following equity compensation: (i) in the
event iCurie, Inc.'s 2006 revenue exceeds projections by at least 5%, options to
purchase that number of shares of common stock of iCurie, Inc. equal to 12.5% of
Executive's aggregate ownership of iCurie, Inc. equity as of the date hereof
(assuming full vesting of all warrants, options or restricted share grants) at
an exercise price of $1.10 per share, (ii) in the event iCurie, Inc.'s 2007
revenue exceeds projections by at least 5%, options to purchase that number of
shares of common stock of iCurie, Inc. equal to 12.5% of Executive's aggregate
ownership of iCurie, Inc. equity as of the date hereof (assuming full vesting of
all warrants, options or restricted share grants) at an exercise price of $1.32
per share, and (iii) options equal to 25% of the number of shares of common
stock of iCurie, Inc. issuable pursuant to the Plan in the event iCurie, Inc.
revenues in 2006 or 2007 exceed projections by at least 25% at a per share
exercise price equal to the greater of $.88 or the 2006 volume weighted average
price per share of common stock of iCurie, Inc. (whether such options are
granted with respect to 2006 or 2007 revenues). All of the above equity awards
will vest annually over a three year period calculated retroactively from the
date hereof (for example, assuming a June 30, 2005 grant date, a 12.5% equity
award in January 2007 for exceeding 2006 revenues would be 33.3% vested on the
date of grant, with the remaining two - thirds vesting on June 30, 2007 and June
30, 2008). Any earned but unvested awards will vest in full upon the Executive's
termination for any reason other than as set forth in clause 18.4.
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"EMPLOYER" "EXECUTIVE"
ICURIE HOLDINGS LTD. /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Signed: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------
Print Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Chief Financial Officer
Signed in the presence of:
Witness signature: ___________________________________________________
Name: ________________________________________________________________
Address: _____________________________________________________________
______________________________________________________________________
Occupation: __________________________________________________________