Executive Service Agreement - TComm (UK) Ltd. and Stewart McLean
DATED November 24, 2004
(1) TComm (UK) Limited
-and-
(2) Stewart McLean
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EXECUTIVE
SERVICE AGREEMENT
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[MORGAN LEWIS LOGO]
2 Gresham Street
London
EC2V 7PE
Tel: 020 7710 5500
Fax: 020 7710 5600
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THIS SERVICE AGREEMENT dated the 24th day of November 2004
BETWEEN:
(1) TComm (UK) Limited of 20-22 Bedford Row, London WC1R 4JS (the "Company");
and
(2) Stewart McLean of 2 Suffolk Street, Batley, West Yorkshire, WF17 7RZ (the
"Executive").
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 Definitions
Except where the context otherwise requires, the following
definitions are used in this Agreement (including the Schedule
attached):
"ASSOCIATED COMPANY" Means a company which is from time to
time a member of the Company or a holding
company or a subsidiary of such company
(other than the Company) or a subsidiary
of the Company. In this definition
"subsidiary" and "holding company" have
the same meanings as in Section 736 of
the Companies Act 1985 and "member" has
the same meaning as in Section 22 of the
Companies Act 1985;
"THE BOARD" The Board of Directors of the Company for
the time being or such other person or
persons as the Board may nominate as the
representative of the Board for the
purpose of this Agreement;
"COMMENCEMENT DATE" 24th November, 2004;
"THE EMPLOYMENT" The employment established by this
Agreement;
1.2 Modification of Enactments
Any reference to an enactment (or subordinate legislation or any
rule made by any authority and having the effect of law) is a
reference to it as amended from time to time and includes a
reference to any repealed enactment which it may re-enact with or
without amendment and any consolidation.
1.3 Interpretation
Unless there is something in the subject or context inconsistent
therewith:
1.3.1 words importing the singular include the plural and vice
versa and references to persons or companies shall include
bodies corporate;
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1.3.2 words importing any gender shall include all genders;
1.3.3 the headings in this Agreement are for convenience only and
shall not affect its interpretation; and
1.3.4 words and phrases used in this Agreement which are defined
in the Companies Act 1985 shall have the same meanings in
this Agreement as their respective definitions in the
Companies Act 1985.
2. EMPLOYMENT
2.1 Subject to the following terms of this Agreement, the Company shall
employ the Executive and the Executive shall serve the Company as
Managing Director or in such other capacity as the Company may
reasonably require.
2.2 The appointment shall commence on the Commencement Date.
2.3 Subject to clause 10, the Employment shall be for a fixed term of
three years from the Commencement Date provided that the term shall
be extended automatically by one year on each anniversary of the
Commencement Date unless either side has given at least three
months' notice of non-renewal.
2.4 The Executive warrants to the Company that by entering into this
Agreement and performing his duties under it he will not be in
breach of any contract or other obligation binding on him.
3. DUTIES
3.1 The Executive shall perform such duties and, exercise such powers
as may from time to time be assigned to or vested in him by or
under the authority of the Board and shall in all respects comply
with all reasonable and lawful directions and restrictions made by
or under the authority of the Board. The Executive may be required
in pursuance of his Employment to be engaged not only on work on
behalf of the Company but also on work on behalf of any Associated
Company for the time being and at such place or places as may be
required and may at any time be required to cease performing or
exercising any duty or power for such period(s) and on such terms
as the Board considers expedient.
3.2 During the Employment, the Executive shall well, faithfully and
diligently serve the Company and use his utmost endeavours to
maintain, extend, develop and promote its interests, and shall
(subject to holidays as hereinafter provided unless prevented by
ill-health) devote the whole of his time, attention and abilities
during normal business hours (which are 9:00 am to 5:30 p.m. Monday
to Friday) to its affairs provided that he shall also attend to the
business of the Company during such other hours as may reasonably
be required for the proper discharge of his duties hereunder. The
Executive shall not be entitled to receive any additional
remuneration for such other hours of work.
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3.3 The Executive agrees to opt out of regulation 4(1) of the Working
Time Regulations 1998 which has the effect of limiting his average
working week (calculated in accordance with the Regulations) to a
maximum of 48 hours. Should either the Company or the Executive
wish to terminate this opt-out, then they may do so by giving the
other not less than four weeks' written notice.
3.4 The Executive shall at all times perform his duties with proper
skill and care.
3.5 The Executive shall not at any time during his Employment hereunder
engage in any activity which does, or is likely to, detract from
the proper performance of his duties hereunder nor (except in the
course of his duties or with the written permission of the Board)
render any services to nor have any direct or indirect financial
interest in any business entity which is, in part or whole, in a
similar field to the Company or any Associated Company, or is a
client of the Company or any Associated Company provided that
nothing contained in this Clause shall preclude the Executive from
holding any shares or other securities (not exceeding three per
cent of the shares or securities of the class concerned for the
time being in issue) in any company whose shares are listed or
dealt in on a recognised stock exchange.
3.6 The Executive shall at all times keep the Board promptly and fully
informed (in writing if so requested) of his conduct of the
business' finances or affairs of the Company. He shall provide such
explanations and supply all information in his possession as the
Board may require in connection with such conduct of the business,
finances or affairs of the Company.
3.7 The Executive shall comply with all the Company's rules,
regulations and policies from time to time in force.
4. REMUNERATION
4.1 The Executive shall be paid for his services hereunder a salary
which shall be payable by equal monthly installments on the first
day of each month (or on the previous working day if such day falls
on a weekend or bank holiday), in arrears. Such salary shall be
deemed to accrue from day to day and shall be inclusive of any
remuneration or fees to which the Executive may be entitled as
director of the Company or of any Associated Company. The rate of
payment shall be (pound)24,000 per annum for the first 12 months of
this Agreement and thereafter payment shall be made at a rate of
(pound)36,000 per annum or such other rate as the parties may
agree.
4.2 At least once in each six months, the Company shall review, but
shall not be obliged to increase, the salary payable under this
Agreement save as set out in clause 4.1 above.
4.3 On the Commencement Date the Board and the Executive shall agree
upon annual revenue targets for the Company for the three years
from the Commencement Date and put in place a bonus scheme relative
to those revenue targets. The Executive shall be entitled to
participate in the bonus scheme upon such terms and conditions as
shall be set by the Board in its absolute discretion from time to
time. To be eligible for consideration for such a bonus, the
Executive must still be in service and not under notice of
termination on the date appointed for payment of the bonus. The
amount of the bonus (if any) shall be in the absolute discretion of
the Board and the Board shall be entitled to terminate any bonus
put in place at any time upon one month's written notice to the
Executive.
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4.4 The Company does not provide private medical insurance for its
employees but shall (at its sole discretion) review the feasibility
of putting in place such a scheme from time to time, but in no
event shall the Company be under an obligation to provide such a
scheme.
4.5 The Executive shall be eligible to participate in the JAG Media
Holdings, Inc stock option scheme. Membership of the said scheme
shall be in accordance with the rules of the scheme for the time
being in force and the vesting schedule and exercise price under
the scheme applicable to the Executive are set out in the Schedule
to this Agreement.
5. PENSION
The Company does not operate an occupational pension scheme applicable
to the Employment and does not contribute to any personal pension
scheme of the Executive but shall, at its sole discretion, review the
Company's pension policy from time to time and shall notify the
Executive of any changes as appropriate.
6. EXPENSES
The Company shall reimburse to the Executive such travelling, hotel,
entertainment and other out-of-pocket expenses as shall from time to
time be reasonably and properly incurred by him in the course of the
Employment subject to the Executive furnishing the Company such
information and evidence of the same including, without limitation,
original receipts as the Company shall reasonably require and provided
always that in any period of 12 months the Executive shall not incur
out-of-pocket expenses in excess of (pound)500.00 on a single occasion
or in excess of (pound)6,000 in aggregate without the prior written
approval of the Board.
7. HOLIDAYS
7.1 The Executive shall be entitled to 25 working days' holiday in each
calendar year at times convenient to the Board in addition to bank
and other public holidays and shall be paid at the basic rate of
salary as set out in clause 4.1 above in respect of all holidays
taken. The entitlement to holiday and, on termination of the
Employment, holiday pay in lieu of holiday, shall accrue pro rata
throughout each year of the Employment.
7.2 The Executive may not carry forward any unused holiday entitlement
to any subsequent year without the consent of the Board. Any unused
holiday remaining at the end of the year shall lapse and no payment
in lieu of that entitlement will be made.
7.3 Upon termination of the Employment the Company will, whichever is
appropriate, pay the Executive in lieu of holiday accrued but not
taken by the date of termination of the Employment (except where
the Employment is terminated for gross misconduct, in which case no
payment will be made) or deduct from the Executive's final salary
payment or (in the event that this is insufficient) require the
Executive to pay to the Company, an amount representing salary paid
during holiday taken but not accrued by the date of termination of
the Employment.
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8. MEDICAL AND SICKNESS
8.1 The Company may where the Executive is absent from work due to
illness, accident or other incapacity or where the Board considers
that the Executive is not performing his duties properly require
the Executive to be examined by a medical adviser nominated by the
Company, and the Executive consents to the medical adviser
disclosing the results of the examination to the Company.
8.2 If the Executive is absent from work due to illness, accident or
other incapacity, he shall deliver or cause to be delivered
promptly to the Company:
8.2.1 in the case of an absence of seven consecutive days or
less, a form of self-certification of illness or accident
absence; and
8.2.2 in the case of a longer absence, a certificate from a
medical practitioner on the eighth day of absence and
weekly thereafter.
8.3 The Company shall pay the Executive for up to 12 months during
periods of absence due to illness, accident and/or other incapacity
(which is duly certified in accordance with Clause 8.2). For the
first six months of absence, the Executive shall be entitled to
full basic salary (as provided in clause 4.1) and for the
subsequent six months of absence, the Executive shall be entitled
to half basic salary. All payments made by the Company shall be
inclusive of payments made to the Executive under the Statutory
Sick Pay Scheme and Sickness Benefit in respect of the period
concerned.
8.4 If the Executive is unable to perform his duties under this
Agreement by reason of illness, accident or other incapacity for a
period of 24 weeks or more in any 12 month period, the Company
shall be entitled to terminate the Employment upon written notice
of not less than six months.
8.5 If the illness, accident or other incapacity is caused by the act
or omission of a third party the Executive must, at the Company's
request, include in any claim for damages against such third party
a claim in respect of monies paid by the Company under this clause
8 and must refund to the Company any damages recovered under that
head.
9. CONFIDENTIAL INFORMATION
9.1 Except in the proper performance of his duties or with the prior
written consent of the Company, the Executive will not either
during the Employment or at any time afterwards use or divulge to
any person any information of a private, confidential or secret
nature concerning the business, products, processes or affairs of
the Company or any Associated Company or of any person having
dealings with the Company or any Associated Company and which comes
to his knowledge during the course of or in connection with the
Employment or his holding any position within the Company or any
Associated Company.
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9.2 The Executive will promptly, whenever requested by the Company and
in any event upon the termination of the Employment with the
Company, deliver up to the Company all correspondence and all other
documents, papers and records which may have been prepared by him
or have come into his possession in the course of the Employment
with the Company (except for any such documents which may be
considered by the Company to be in the public domain), and all
electronic equipment, computer software or hardware and other
property used in connection with the operations of the Company or
Associated Company, and he may not retain any copies. Title to and
copyright in such correspondence and other documents, papers,
records and property shall vest in the Company.
9.3 Breach of this clause 9 will normally be regarded as serious
misconduct and may also lead to further legal action against the
individual or companies involved.
9.4 No statement to the press or other media regarding the Company or
its business shall be made by the Executive unless approved in
advance by at least one member of the Board.
10. TERMINATION
10.1 The Company shall be entitled to terminate the Employment forthwith
if the Executive shall:
10.1.1 be guilty of dishonesty (whether relating to the Company or
any Associated Company or not) or serious or persistent
misconduct or any other conduct which, in the opinion of
the Board, tends to bring the Executive or the Company or
any Associated Company into disrepute;
10.1.2 without reasonable cause willfully neglect or refuse to
discharge his duties or to attend to the business of the
Company or of any Associated Company;
10.1.3 commit any material breach of this Agreement (other than a
breach which (being capable of being remedied) shall be
remedied forthwith upon the Executive being called upon to
do so in writing by the Board);
10.1.4 be convicted of any criminal offence (excluding an offence
under road traffic legislation in the United Kingdom or
elsewhere, for which the Executive is not sentenced to any
term of imprisonment, whether suspended or not);
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10.1.5 in the opinion of the Board, fails to exercise reasonable
skill and care in the performance of his duties;
10.1.6 have an order made by any competent court for the
appointment of a receiver or other person to exercise
powers with respect to his property or affairs;
10.1.7 become bankrupt or make any composition or enter into any
deed of arrangement with his creditors;
10.1.8 be disqualified from holding office in any company;
10.1.9 resign as a director of the Company (or of any Associated
Company) except at the request of the Company (or such
Associated Company);
10.2 The Company shall be entitled to terminate the Employment on not
less than six months prior written notice if the Executive is
unable as a result of illness, accident or other incapacity to
properly perform his duties hereunder for a period of 24 weeks in
any 12-month period.
11. RESTRICTIONS ON COMPETITION
11.1 The Executive shall not, for the first 12 months after the end of
the Employment, either on his own account or on behalf of any other
legal person, and in competition with the Company or in any
Associate, directly or indirectly engage in or be concerned with,
or employed in, any trade or business competitive with that carried
on by the Company or its Associates.
11.2 The Executive shall not, for the first 12 months after the end of
the Employment solicit or accept orders for products or services
competitive with those of the Company or any Associates from
customers of the Company or Associates with whom the Executive
dealt during the last six months of the Employment.
12. RESIGNATION FROM OFFICE ON TERMINATION OF EMPLOYMENT
Upon termination of his employment the Executive shall, at the request
of the Board and without further claim for compensation, resign from
all offices held by him in the Company or in any Associated Company and
from all other appointments or offices which he holds as nominee or
representative of the Company or any Associate Company and if he fails
to do so, the Company is irrevocably authorised by the Executive to
appoint some person in the Executive's name and on the Executive's
behalf to execute such documents and to do such other things as are
reasonably necessary to give effect to such resignations.
13. LITIGATION ASSISTANCE
The Executive covenants and agrees that he shall, upon reasonable
notice, during the term of this Agreement and for two years after the
expiration or termination thereof, furnish such information and proper
assistance to the Company as may be reasonably required by the Company
in connection with any litigation in which it or any Associated Company
is, or may become, a party. The Company shall reimburse the Executive
for all reasonable out of pocket expenses incurred by him in furnishing
such information and assistance.
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14. INTELLECTUAL PROPERTY
14.1 The Executive will promptly disclose to the Company any invention,
development, discovery, improvement, new software or source code or
design made by him whether alone or with others during the
performance of his duties as an employee and whether or not the
same is capable of protection as intellectual property by patent,
copyright, design right, as a trade mark or by other means and he
shall not use, disclose to any person or exploit the same without
the express prior written consent of the Company.
14.2 Subject to any rights granted to the Executive by the Patents Act
1977 which cannot be excluded by agreement, any invention,
discovery, design, development, or improvement whether or not
capable of protection by patent registered design or otherwise and
any copyright in any document, letter, software or other work
protectable by copyright suggested written, created, designed,
invented, conceived or acquired by the Executive during the course
of his employment ("the Intellectual Property") shall belong
absolutely to the Company and to the extent that some or all of the
rights pertaining to the Intellectual Property do not vest
automatically in the Company the Executive hereby as beneficial
owner assigns to the Company all his rights whatsoever in the
Intellectual Property. The Executive will provide the Company with
full details and information with regard thereto and will at the
request and expense of the Company apply to join with the Company
in applying for registration of any of the Intellectual Property in
the United Kingdom and/or in any other part of the world as
specified by the Company.
14.3 The Executive will at the Company's request and expense do all such
things and sign all documents or instruments reasonably necessary
in the opinion of the Company to obtain, defend and enforce its
rights in the Intellectual Property and in the meantime will hold
all interest therein in trust for the Company. The Executive hereby
irrevocably appoints the Company to be his attorney in his name and
on his behalf to execute any such document or instrument and
generally to use his name for the purpose of giving to the Company
(or its nominee) the full benefit of the provisions of this Clause
15 and in favour of any third party a certificate in writing signed
by any Director or Secretary of the Company that any instrument or
act falls within the authority hereby conferred shall be conclusive
evidence that such is the case.
14.4 The Executive hereby waives all moral rights in any copyright works
originated, conceived, written or made by him (either alone or with
others) and agrees not to claim that any treatment, exploitation or
use of the said works infringe such moral rights (including but not
limited to the right to be identified, the right to object to
derogatory treatment and the right against false attribution).
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14.5 Each of the obligations under this Clause 14 is enforceable
independently of each of the others and its validity will not be
affected if any of the others is unenforceable to any extent.
14.6 Rights and obligations under this Clause 14 shall continue in force
after termination of the Employment in respect of Intellectual
Property and shall be binding on the Executive's personal
representatives.
15. DATA PROTECTION
15.1 The Executive agrees that the Company may use information about him
which he may provide to the Company or which the Company may
acquire during the course of this Agreement provided that such use
is in accordance with the Data Protection Act 1998.
15.2 The Executive hereby consents to the processing of any data
relating to him, in particular, to the processing of any "sensitive
personal data" (as defined in the Data Protection Act 1998)
relating to him (including, for example, information relating to
his health or racial or ethnic origin).
15.3 The Executive authorises the transfer of any personal data held
pursuant to the terms and conditions of his employment by the
Company to any third party located outside the United Kingdom.
16. REDUNDANCY
16.1 If, during the first 12 months of this Agreement, the Company is to
be wound up or is to cease to trade in the United Kingdom for any
reason, the Company reserves the option to terminate the Employment
by paying in lieu of notice three months basic salary. In addition,
the Company shall pay the Executive either (a) a further three
months basic salary or (b) the remaining unpaid portion of the
Executive's basis salary for the first 12 months whichever sum is
the greater. The payment made under this clause 16.1 shall be
subject to deductions for income tax and national insurance
contributions as appropriate.
16.2 If the Employment is not renewed on the expiry of the fixed period
or any renewal or extension of it, the Executive agrees that he
shall have no entitlement to statutory redundancy pay.
17. OTHER AGREEMENTS
17.1 This Agreement shall, from the Commencement Date, operate in
substitution for any terms of service previously in force (whether
written or oral) between the Company and/or any Associated Company
and the Executive and the Executive acknowledges and warrants that
there are no agreements or arrangements whether written, oral or
implied between the Company or any Associated Company and the
Executive relating to the employment of the Executive other than
those expressly set out or referred to in this Agreement and that
he is not entering into this Agreement in reliance on any
representation not expressly set out herein.
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17.2 The Executive shall comply with all of the Company's rules,
regulations and policies from time to time in force. In the event
of any conflict between such rules, regulations and policies and
this Agreement, this Agreement shall prevail.
18. NOTICES
18.1 Any notice to be given by either party hereunder shall be in
writing and, in the case of the Company, may be delivered or sent
by first class post or telex or facsimile process to the Company at
its registered office for the time being and, in the case of the
Executive, may be delivered to his or sent by first class post to
his usual or last known address.
18.2 Unless the contrary is proved, any such notice or other document
shall be deemed to have been served:
18.2.1 if delivered, at the time of delivery;
18.2.2 if posted, at 10.00am on the second working day after it
was put into the post; or
18.2.3 if sent by telex or facsimile process, at the expiration of
2 hours after the time of dispatch, if dispatched before
3.00pm on any working day, and in any other case at 10.00am
on the working day following the date of dispatch.
18.3 In proving such service it shall be sufficient to prove that
delivery was made or that the envelope containing such notice or
other document was properly addressed and posted as a pre-paid
first class letter, or that the telex or facsimile message was
properly addressed and dispatched as the case may be.
19. MISCELLANEOUS
19.1 Any amendment to this Agreement shall be in writing signed by the
parties and expressed to be for the purpose of such amendment.
19.2 This Agreement shall be governed by and construed in accordance
with English law and each party submits to the exclusive
jurisdiction of the English courts.
19.3 The expiration or determination of the Employment howsoever
arising, shall not affect any provision of this Agreement which is
expressed to operate or have effect thereafter, and shall be
without prejudice to any right of action already accrued to either
party in respect of any breach of this Agreement by the other
party.
19.4 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.
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20. STATUTORY PARTICULARS
20.1 The following particulars are given in compliance with the
Employment Rights Act 1996 so far as not already taken into account
elsewhere to this Agreement:-
20.1.1 There are no specific disciplinary rules applicable to the
Employment but the Executive is expected at all times to
conduct himself in a manner consistent with his senior
status.
20.1.2 In the event of the Executive either being dissatisfied
with any disciplinary decision or wishing to seek to
address any grievance relating to the Employment, he should
first apply to the chairman. If the matter is not resolved
within seven days, the Executive may appeal to the Board
which will afford to the Executive the opportunity of a
full and fair hearing at a meeting of the Board or a duly
appointed committee thereof whose decision shall be final
and binding.
20.1.3 A Contracting Out Certificate under the Pension Schemes Act
1993 has not been issued in respect of the Employment.
20.1.4 There are no collective agreements which affect the terms
and conditions of Employment.
20.1.5 There is no employment with a previous employer which
counts as part of the Executive's continuous period of
employment for the purposes of the Employment Rights Act
1996.
IN WITNESS whereof the parties have executed this Agreement on the date first
above written.
SIGNED for and on behalf of
TCOMM (UK) LIMITED
by its duly authorised representative
SIGNATURE: /s/ Thomas J. Mazzarisi
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PRINT NAME: Thomas J. Mazzarisi
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POSITION: Director
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SIGNED BY
/s/ Stewart McLean
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STEWART MCLEAN
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SCHEDULE
The Executive shall be granted an option to purchase 100,000 shares of JAG Media
Holdings, Inc. common stock, which shall be issued pursuant to the long-term
incentive plan of JAG Media Holdings, Inc (a copy of which shall be provided to
the Executive). The option shall have the following vesting schedule and
exercise prices:
VESTING DATE # OF SHARES EXERCISE PRICE
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1st Day of Month 13 25,000 US$0.50
1st Day of Month 19 25,000 US$0.50
1st Day of Month 25 25,000 US$0.75
1st Day of Month 31 25,000 US$1.00
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