Current Report — Form 8-K
Filing Table of Contents
Document/Exhibit Description Pages Size
1: 8-K Current Report 6 23K
2: EX-2.1 Share Acquisition Agreement 21 65K
3: EX-10.1 Agreement, Dated June 9, 1997 7 26K
4: EX-10.2 Taxation Indemnity 5 17K
5: EX-10.3 Services Agreement 14 43K
6: EX-10.4 Service Agreement 17 53K
7: EX-10.5 Deed of Covenant 8 29K
8: EX-10.6 Deed of Covenant 9 28K
9: EX-10.7 Loan Agreement 11 35K
10: EX-10.8 Stock Pledge Agreement 8 29K
11: EX-10.9 Termination Agreement 4 11K
EX-10.4 — Service Agreement
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CONFORMED COPY
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DATED 9 June 1997
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(1) GORANDEL TRADING LIMITED
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(2) MIKHAIL GOLOVATOV
SERVICE AGREEMENT
Travers Smith Braithwaite
10 Snow Hill
London EC1A 2AL
Tel: 0171-248 9133
I N D E X
Clause Page No.
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1. Interpretation 1
2. Appointment and Term 2
3. Duties 2
4. Conflicts of Interest 3
5. Salary and Bonus 3
6. Holidays 4
7. Illness or Accident 4
8. Termination 4
9. Confidentiality 6
10. Protection of Business Interests 7
11. Disciplinary and Grievance Procedure 7
12. Notices 7
13. Deductions 8
14. General 8
Schedule
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1. Power of Attorney 9
2. Protection of Business Interests 11
Annexure
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Map of the Relevant Area
AN AGREEMENT made on 9 June, 1997
BETWEEN:-
(1) GORANDEL TRADING LIMITED a company incorporated and registered in Cyprus
(registration number 56442) whose registered office is at 10 Mnasiadou Street,
Elma Building, Nicosia, Cyprus ("the Company"); and
(2) MIKHAIL GOLOVATOV of 22-39 Bolshaya Nikitshaya Street, Moscow 103009,
Russia (the "Executive").
IT IS AGREED as follows:-
1. Interpretation
1.1 In this Agreement the following words and expressions shall have the
following meanings:-
"Board" the board of directors of the Company from
time to time;
"Chairman" the Chairman of the Board from time to time;
"Effective Date" the date of this Agreement;
"Group Company" any company which from time to time is:-
(a) a subsidiary undertaking of the
Company;
(b) a holding company of the Company;
(c) a subsidiary undertaking of any such
holding company; or
(d) an associated company being any
company in which the Company or any
Group Company has a shareholding of
25% or more or any company which
has a shareholding of 25% or more in
the Company or any Group Company;
"subsidiary" and "holding company" have the
meanings attributed to them by section 736 of
the Companies Act 1985;
"Term" the period of the Executive's employment
hereunder;
"Termination Date" (other than for the purposes of Schedule 2 to
this Agreement) the date on which the
employment of the Executive under this
Agreement shall terminate for whatever
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reason,
and derivative expressions shall be construed accordingly.
1.2 Words and phrases which are not defined in this Agreement but which
are defined in the Act, the Companies Act 1985, or the Insolvency Act
1986 shall be construed as having those meanings.
1.3 References to any statute or any statutory provision shall be
construed as references to the statute or statutory provision as in
force at the date of this Agreement and as subsequently re-enacted or
consolidated and shall include references to any statute or any
statutory provision of which it is a re-enactment or consolidation.
1.4 Unless the context otherwise requires references in this Agreement to
the masculine gender shall, where appropriate, be deemed to include
the feminine and vice versa.
1.5 The Schedules to this Agreement are an integral part of this Agreement
and references to this Agreement include reference thereto.
2. Appointment and Term
2.1 The Company shall employ the Executive and the Executive shall serve
the Company as Managing Director on the terms set out in this
Agreement.
2.2 The Executive's employment under this Agreement shall commence on the
Effective Date and continue (subject to the provisions of this
Agreement) until terminated by either party giving to the other not
less than 12 months' previous notice in writing.
2.3 The Executive represents to the Company that he is entitled to enter
into this Agreement and to implement and carry out its terms and that
by so doing he shall not be in breach of any obligation (contractual
or otherwise) to any third party which would entitle that third party
to damages or any other remedy at law.
3. Duties
3.1 The Executive shall perform the duties and exercise the powers which
from time to time may be assigned to him or vested in him by the Board
and shall devote such of his time, ability and attention to his duties
under this Agreement as may be reasonably required for the proper
performance of his duties and he shall use his utmost endeavours to
promote the interests of the Company and any Group Company and shall
not knowingly do or willingly permit to be done anything to the
prejudice, loss or injury of the Company or any Group Company and
shall carry out such duties in a competent manner.
3.2 The Board shall be entitled at any time to require the Executive to
perform services not only for the Company but also for any Group
Company including, if so required, acting as a director of any Group
Company.
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3.3 The Executive shall at all times keep the Board promptly and fully
informed (in writing if so requested) of his conduct of the business
or affairs of the Company and any Group Company and provide such
explanations of his conduct as the Board may require.
3.4 Notwithstanding the provisions of clause 3.1, the Company may at any
time following the giving of notice by either party to terminate this
Agreement and for such period as it may specify not exceeding the
length of notice given cease to provide work for the Executive in
which event, during such period the other provisions of this Agreement
including those relating to the Executive's remuneration shall
continue to have full force and effect but the Executive shall not be
entitled to access to any premises of the Company or any Group
Company.
3.5 Subject always to clause 4, during the Term the Executive shall not
without the prior written consent of the Board engage in any
activities outside his employment which may detract from the proper
and timely performance of his duties under this Agreement.
3.6 The Executive's principal place of work shall be Moscow and he shall
undertake any travel as may be necessary for the proper performance of
his duties as the Board may from time to time require.
4. Conflicts of Interest
4.1 Save for those engagements, concerns and interests of the Executive which
are existing as at the date of this Agrement during the Term the Executive
shall not without the prior consent of the Company whether alone or jointly
with or on behalf of any other person, firm or company and whether as
principal, partner, manager, employee, contractor, director, consultant,
investor or otherwise (except as a representative or nominee of the Company or
any Group Company or otherwise with the prior consent in writing of the Board)
be engaged, concerned or interested in any other business which:-
4.1.1 is wholly or partly in competition with any business carried
on by the Company or any Group Company; or
4.1.2 as regards any goods or services is a supplier to or customer
of the Company or any Group Company.
5. Salary and Bonus
5.1 The Executive shall receive a fixed annual salary of US$40,000 which
shall accrue from day to day and be payable by equal monthly
instalments in arrears on the last working day of each calendar month
or such salary as may be agreed and confirmed to the Executive in
writing by the Board in its sole discretion from time to time.
5.2 In addition to the Executive's fixed annual salary, he shall receive
an annual bonus in respect of each financial year of the Company
calculated on a basis to be agreed by the Board and the Executive.
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5.3 The Executive shall not be entitled to any fees in respect of any
directorship of the Company or any Group Company and to give effect to
this clause the Executive shall forthwith pay to the Company or
procure that the Company is paid all such fees received.
5.4 Payment of such salary and such bonuses (if any) to the Executive
shall be made either by the Company or by another company in the Group
and, if by more than one company, in such proportion as the Board may
from time to time think fit.
5.5 In addition there shall be refunded to the Executive such sums as
shall cover all reasonable out of pocket expenses incurred by him on
the Group's business (including hotel expenses and expenses of
subsistence and travelling), which said expenses shall be evidenced in
such manner as the Company may require.
6. Holidays
6.1 The Executive shall be entitled to 25 days' holiday on full pay in
every calendar year to be taken at such reasonable time or times as
the Board shall approve. Any holiday not so used in a calendar year
may not be carried forward without the approval of the Board.
6.2 If this Agreement is terminated under clause 8.4, the Executive will
not be entitled to any payment in lieu of holiday not taken at the
Termination Date.
7. Illness or Accident
If the Executive shall be absent for up to a maximum of 90 working days in any
rolling period of twelve months owing to accident or illness so that he is
unable properly to perform his duties he shall continue to be entitled to his
full salary excluding any bonus or commission during any period of absence up
to a maximum of 90 working days in any rolling period of 12 months provided
that if at any time during such a period of absence referred to above the
Executive becomes eligible to receive benefits in respect of accident or
illness the Company shall be entitled to set off or deduct the amount of any
such benefits from the salary payable to the Executive under this clause.
During any such period of absence, the Company shall be entitled at any time to
appoint a further executive director or employee to perform the Executive's
duties and to exercise his powers.
8. Termination
8.1 The Company shall at all times be entitled to terminate the Agreement
pursuant to clause 2.2.
8.2 The Company may, at its sole and absolute discretion, terminate the
Executive's employment forthwith at any time by serving a notice under
this clause stating that the Agreement is being determined in
accordance with this clause 8.2 and undertaking to pay to the
Executive within 14 days salary in lieu of any required period of
notice or unexpired part thereof (subject to tax). For the avoidance
of doubt, where the Company terminates the Agreement in accordance
with this clause the terms of, inter alia, clause 8 and Schedule 2
shall remain in full force and effect.
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8.3 Where the Company terminates this Agreement otherwise than in
accordance with clause 2.2 or 8.2 (subject always to clause 8.4), any
damages to which the Executive may be entitled shall be calculated in
accordance with ordinary common law principles including those
relating to mitigation of loss.
8.4 Notwithstanding the provisions of clauses 8.1 and 8.2, the Company
shall be entitled, by notifying the Executive in writing, to terminate
this Agreement and the Executive's employment forthwith without any
payment by way of compensation, damages or otherwise if the Executive
shall:-
8.4.1 commit any act of serious misconduct;
8.4.2 commit any material or persistent breach of any of the terms
or conditions of this Agreement including any wilful neglect
or refusal to carry out any of his duties or to comply with
any instruction given to him by the Board;
8.4.3 have a bankruptcy order made against him or shall compound
with or enter into any voluntary arrangements with his
creditors;
8.4.4 be charged with or convicted of any criminal offence;
8.4.5 be disqualified from holding office in the Company or any
other company;
8.4.6 act in any way which may in the reasonable opinion of the
Board bring the Company or any Group Company into disrepute
or discredit; or
8.4.7 in his capacity as a director of the Company resign or be
removed, except where this has been required by the Company
pursuant to clause 8.5.1;
in which event, for the purposes of this Agreement, the Termination
Date shall be the date of the written notice terminating the
Executive's employment.
8.5 The Executive shall resign from the Board and the boards of any Group
Company of which he is director:-
8.5.1 if at any time during the Term the Executive is prevented
from performing his duties whether through sickness or
because the Company has exercised its rights under clause 3.4
or otherwise howsoever and the Company requires the Executive
to resign; and in any event
8.5.2 on the Termination Date,
and the Executive shall at the time of signing this Agreement appoint
the Company as his attorney by executing a power of attorney in the
form set out in Schedule 1 to do and sign in his name and on his
behalf any things and documents as may be required under the
constitution of each company to make his resignation effective
(including the transfer (without payment) to the Company or as the
Company may direct may qualifying shares provided by it).
8.6 The proper exercise by the Company of its right of termination under
clause 8.4
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shall be without prejudice to any other rights or remedies which the
Company or any Group Company may have or be entitled to exercise
against the Executive.
8.7 If the employment of the Executive under this Agreement shall be
terminated for the purpose of reconstruction or amalgamation only
whether by reason of the liquidation of the Company or otherwise and
he shall be offered employment with any concern or undertaking
resulting from this reconstruction or amalgamation on terms and
conditions no less favourable than the terms of this Agreement then
the Executive shall have no claim against the Company in respect of
the termination of his employment hereunder.
8.8 The Executive shall not at any time during any period when he is
required to cease the performance of his duties under clause 3.4 or
after the Termination Date make any public statements in relation to
the Company or any Group Company or any of their officers or
employees. The Executive shall not after the Termination Date
represent himself as being employed by or connected with the Company
or any Group Company.
8.9 All credit, charge and expense cards, motor cars, car keys and all
books, papers, drawings, designs, documents, records and computer
software kept or made by or in the possession or control of the
Executive relating to the businesses of the Company and any Group
Company and all other property of the Company and any Group Company
are and remain the property of the Company or such Group Company and
the Executive shall deliver all such items in his possession custody
or control at the Termination Date immediately to the Company.
9. Confidentiality
9.1 The Executive acknowledges that during the Term he shall in the
performance of his duties become aware of trade secrets and other
confidential information relating to the Company, the Group Companies,
their businesses and its or their clients or customers and their
businesses.
9.2 Without prejudice to his general duties at common law in relation to
such trade secrets and other confidential information, the Executive
shall not during the Term or at any time after the Termination Date
disclose or communicate to any person or persons or make use (other
than in the proper performance of his duties under this Agreement) and
shall use his best endeavours to prevent any disclosure, communication
or use by any other person, of any such trade secrets or confidential
information.
9.3 Since the Executive in the course of his employment or by reason of
services rendered for or offices held in any other company may obtain
knowledge of the trade secrets or other confidential information or
such company, the Executive hereby undertakes that he will at the
request and cost of the Company enter into a direct agreement or
undertaking with such other company whereby he will accept
restrictions corresponding to the restrictions herein contained (or
such of them as may be appropriate in the circumstances) in relation
to such products and services and such area and for such period as
such company may reasonably require for the protection of its
legitimate interests.
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9.4 The provisions of this clause shall cease to apply to information or
knowledge which comes into the public domain otherwise than by reason
of the default of the Executive.
9.5 For the purposes of clause 9 confidential information shall include,
but not be limited to, all and any information (whether or not
recorded in documentary form or on computer disk or tape) which
relates to:
(a) the business methods, corporate plans, management systems,
finances, maturing new business opportunities or research and
development projects of the Company;
(b) suppliers, their identities and prices;
(c) customers, their identity, needs and requirements;
(d) marketing or sales of any past, present or future product or
service of the Company including without limitation sales
targets and statistics, market share and pricing statistics,
market surveys and plans, market research reports, sales
techniques, price lists, discount structures and advertising
and promotional material;
(e) trade secrets, technical specifications and other technical
information relating to the businesses of the Company; and
(f) all information material to any dispute or litigation
involving the Company.
10. Protection of Business Interests
The Executive shall be bound by the provisions of Schedule 2.
11. Disciplinary and Grievance Procedure
11.1 Any disciplinary matters affecting the Executive will be dealt with by
the Board. If the Executive wishes to seek redress for any grievance
relating to his employment he should submit his grievance to the Board
in writing whose decision on such grievance shall be final. There are
no specific disciplinary rules affecting the Executive.
11.2 In order to investigate a complaint against the Executive, the Company
reserves the right to suspend the Executive on full pay and to exclude
the Executive from any premises of the Company and any Group Company
for so long as it deems necessary to carry out a proper investigation
and to hold any appropriate disciplinary hearings.
12. Notices
Any notice to be given under this Agreement shall be in writing.
Notices may be served by either party by personal service or by
recorded delivery or by first class post addressed to the other party
or by leaving such notice at (in the case of the
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Company) its registered office for the time being and (in the case of
the Executive) his last known address and any notice given shall be
deemed to have been served at the time at which the notice was
personally served or if sent by recorded delivery at the time of
delivery as recorded or if sent by first class post on the second
working day after posting or in the case of being left as appropriate
at the registered office or last known address, the date on which it
was so left.
13. Deductions
The Executive consents to the deduction from his wages of any sums
owing by him to the Company at any time and he also agrees to make any
payment to the Company of any sums owing by him to the Company upon
demand by the Company at any time. This clause is without prejudice to
the rights of the Company to recover any sums or balance of sums owing
by the Executive to the Company by legal proceedings.
14. General
14.1 This Agreement (including its Schedules) constitute the entire and
only legally binding agreement between the parties relating to the
employment of the Executive by the Company or any Group Company and
replaces any previous employment agreements or arrangements. No
variation to this Agreement shall be effective unless made in writing
signed by or on behalf of the parties and expressed to be such a
variation.
14.2 No failure or delay by the Company in exercising any remedy, right,
power or privilege under or in relation to this Agreement shall
operate as a waiver of the same nor shall any single or partial
exercise of any remedy, right, power or privilege preclude any further
exercise of the same or exercise of any other remedy, right, power or
privilege.
14.3 No waiver by the Company of any of the requirements of this Agreement
or of any of its rights under this Agreement shall have effect unless
given in writing and signed by the Board. No waiver of any particular
breach of the provisions of this Agreement shall operate as a waiver
of any repetition of that breach.
14.4 If any provision of this Agreement shall be, or become, void or
unenforceable for any reason within any jurisdiction, this shall
affect neither the validity of that provision within any other
jurisdiction nor any of the remaining provisions of this Agreement.
14.5 This Agreement and the rights and obligations of the parties hereto
shall be governed by and construed in accordance with the laws of
England.
14.6 In the event of any claim, dispute or difference arising out of or in
connection with this Agreement the parties hereto irrevocably agree
and submit to the non-exclusive jurisdiction of the Courts of England.
AS WITNESS the hands of the parties hereto or their duly authorised
representatives.
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SCHEDULE 1
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POWER OF ATTORNEY
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By this Power of Attorney made on 1997, I, MIKHAIL
GOLOVATOV of 22-39 Bolshaya Nikitshaya Street, Moscow 103009, Russia in
accordance with the terms of the service agreement ("the Service Agreement" of
even date between myself and Gorandel Trading Limited ("the Company") HEREBY
APPOINT the Company to act as my attorney with authority in my name and on my
behalf (so that words and expressions defined in the Service Agreement shall
have the same meanings herein):-
(a) on or after the Termination Date to do any things and sign any
documents as may be required under the constitution of the Company and
each Group Company to make my resignation as a director from those
companies effective;
(b) to sign or execute any and all agreements, instruments, deeds or other
papers and to do all such things in my name as may be necessary or
desirable to implement my obligations in connection with clause 8.5 of
the Agreement;
(c) within 2 days of the Company having requested my resignation pursuant
to clause 8.5.1 to do any thing and sign any documents to make my
resignation as a director from those Companies effective;
(d) on or after the Termination Date to sign or execute any and all
instruments, deeds or other papers and to do all such things in my
name as may be necessary or desirable to implement a transfer of all
my shares in the Company or any Group Company which I may hold as a
bare nominee for the Company or any Group Company; and
(e) to appoint any substitute and to delegate to that substitute all or
any powers conferred by this Power of Attorney.
I declare that this Power of Attorney, having been given by me to secure my
obligations in connection with clause 8.5 of the Service Agreement, shall be
irrevocable in accordance with section 4 of the Powers of Attorney Act 1971.
IN WITNESS whereof this Power of Attorney has been duly executed on the date
set out above.
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EXECUTED as a DEED and )
DELIVERED by )
MIKHAIL GOLOVATOV )
in the presence of:- )
Witness name:
Address:
Occupation:
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SCHEDULE 2
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PROTECTION OF BUSINESS INTERESTS
--------------------------------
For the avoidance of doubt, the provisions of this Schedule shall not apply if
this Agreement is terminated by the Company in breach of its terms.
In this Schedule the following words and expressions shall have the following
meanings:-
"Business" the business or businesses of the Company or any
Group Company in or with which the Executive has
been involved or concerned namely the business of
providing Security Goods and Security Services to
any firm, company, organisation or individual
requiring the same in any part of the Relevant
Area, whether carried on by such person itself or
through any agent, contractor or subcontractor or
in conjunction in whole or part with one or more
other persons at any time during the period of
twelve months prior to the Termination Date;
CIS the geographical area of those states which at the
date of this Agreement are members of the
Confederation of Independent States and any
state(s), territory(ies) within such area as may
from time to time merge or result from any
reorganisation, boundary reorganisation,
amalgamation or division which may occur in or
between any such state(s);
"directly or indirectly" the Executive acting either alone
or jointly with or on behalf of any other person,
firm or company, whether as principal, partner,
manager, employee, contractor, director,
consultant, investor or otherwise;
"Key Personnel" any person who is at the Termination Date or was
at any time during the period of twelve months
prior to the Termination Date employed or engaged
as a consultant in the Business in an executive,
senior managerial or sales capacity and with whom
the Executive has had dealings other than in a de
minimis way during the course of his employment
under this Agreement;
"Prospective Client" any person firm or company who has been engaged in
negotiations at any time during the twelve months
prior to the Termination Date, with which the
Executive has been personally involved, with the
Company or any Group Company with a view to
purchasing Security Services and/or Security Goods
from the Company or any Group Company;
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"Relevant Area" the area shown edged in red on the map which
comprises the Annexure to this Agreement and which
encompasses the CIS, Latvia, Lithuania and
Estonia;
"Relevant Client" any person firm or company who at any time during
the twelve months prior to the Termination Date,
has been provided with Security Goods or supplied
with Security Services in the Relevant Area,
including any person who has asked (or enquired
about) the provision of Security Goods or Security
Services in the Relevant Area with whom or which
the Executive directly dealt other than in a de
minimis way or for whom or which the Executive was
responsible on behalf of the Company or any Group
Company at any time during the said period (or the
Term if shorter);
"Relevant Period" the period of twelve months from the
Termination Date less any period during which the
Executive has not been provided with work pursuant
to clause 3.4 of this Agreement;
"Relevant Supplier" any person firm or company who at any time during
the twelve months prior to the Termination Date
was a supplier of any goods or services (other
than utilities and goods or services supplied for
administrative purposes) to the Company or any
Group Company and with whom or which the Executive
had personal dealings during the course of his
employment under this Agreement other than in a de
minimis way; and
Security Goods all goods and products required in order to
provide Security Services;
Security Services the provision and management of security of all
kinds, including (without limitation) guard and
other protection services, courier services,
logistical management, medical management,
supervision and training of security personnel,
advice and consultation on all types of security
arrangements and on situations involving security
needs, equipment supply, investigative services
and all services ancillary to or relating to such
matters;
"Termination Date" the date on which the employment of the Executive
under this Agreement shall terminate.
1. The Executive shall not without the prior written consent of the Board
directly or indirectly at any time during the Relevant Period:-
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(a) solicit away from the Company or any Group Company; or
(b) endeavour to solicit away from the Company or any Group
Company; or
(c) employ or engage; or
(d) endeavour to employ or engage,
any Key Personnel.
2. The Executive shall not without the prior written consent of the Board
directly or indirectly at any time within the Relevant Period:-
2.1 (a) solicit the custom of; or
(b) deal with,
any Relevant Client or Prospective Client in respect of any
Relevant Services; or
2.2 (a) interfere; or
(b) endeavour to interfere,
with the continuance of supplies to the Company and/or any
Group Company (or the terms relating to those supplies) by
any Relevant Supplier.
3. The Executive shall not without the prior written consent of the Board
directly or indirectly at any time within the Relevant Period engage
or be concerned employed or interested in any business within the
Relevant Area which (a) competes or (b) will at any time during the
period of six months from the Termination Date compete with the
Business.
4.1 The Executive acknowledges (having taken appropriate legal advice)
that the provisions of this Schedule are fair and reasonable and
necessary to protect the goodwill and interests of the Company and the
Group Companies and shall constitute separate and severable
undertakings given for the benefit of the Company and each Group
Company and may be enforced by the Company on behalf of any of them.
4.2 If any of the restrictions or obligations contained in this Schedule
is held not to be valid on the basis that it exceeds what is
reasonable for the protection of the goodwill and interests of the
Company and the Group Companies but would be valid if part of the
wording were deleted then such restriction or obligation shall apply
with such deletions as may be necessary to make it enforceable.
4.3 The Executive acknowledges and agrees that he shall be obliged to draw
the provisions of this Schedule to the attention of any third party
who may at any time before or after the termination of the Executive's
employment hereunder, offer to engage the Executive in any capacity
and for whom or with whom the Executive
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intends to work.
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SIGNED by RICHARD BETHELL )
a Director duly authorised )
for and on behalf of ) RICHARD BETHELL
GORANDEL TRADING LIMITED )
in the presence of:-
NEAL WATSON
SOLICITOR
C/O 10 SNOW HILL
LONDON EC1A 2AL
SIGNED by MIKHAIL )
GOLOVATOV in the ) MIKHAIL GOLOVATOV
presence of:- )
NEAL WATSON
SOLICITOR
C/O 10 SNOW HILL
LONDON EC1A 2AL
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