Exhibit 10.4


 


EMPLOYMENT AND SERVICE AGREEMENT


 


This Employment and Service Agreement (“Agreement”) is effective April
1, 2004, between and among Raining Data Corporation, including its UK
subsidiary, RAINING DATA UK, LTD., and its successors in interest (collectively
referred to as “Raining Data Corporation” or the “Company”) whose registered
office is located at Mitford House, Benhall, Saxmindham, Suffolk, UK IP17 1JS
and Gwyneth Margaret Gibbs, an employee of Raining Data UK, LTD, whose address
is Church Farm House, Church Road, Blaxhall, Woodbridge, Suffolk, UK IP12 2DH.


 


NOW IT IS HEREBY AGREED AS FOLLOWS:


 


1.              TERM OF
EMPLOYMENT.  With effect from April 1,
2004 the Company shall employ the Employee and the Employee shall serve the
Company. The Agreement will continue to until either party gives written notice
of intent to terminate in accordance with the terms of this Agreement.


 


2.             DUTIES AND
RESPONSIBILITES.   During the term of
employment the Employee’s role will include, but is not limited to:


 


•             Manage and oversee
the European Operations as directed by the Company


•             Oversee the day to
day operations of Mitford House


•             Oversee and direct
the sales, marketing, engineering and corporate operations as directed by the
Company, its management and directors


 


(a) During
Employee’s employment hereunder, the Employee shall devote the whole of
Employee’s time and attention during business hours to the business of the
Company and shall use Employee’s best endeavors at all times to promote the
interest and welfare of the Company.


 


(b) The
Employee shall exercise and perform such powers and duties as the Company shall
from time to time delegate to Employee.


 


(c) The
Employee shall conform to such hours of work as may be required for the proper
performance of Employee’s duties and shall not be entitled to receive any
additional remuneration for work performed outside Employee’s normal business
hours.


 


3.             RENUMERATION.  The Company shall, during the continuance of
the agreement, pay to the employee by way of remuneration:


 


(a) A basic
salary of Pound Sterling £125,000 per annum which shall be payable pro rata in
arrears on the last day of each calendar month by equal monthly installments.


 


(b)
Reimbursement for all expenses reasonably and properly incurred by the Employee
in or about the discharge of Employee’s duties


 


(c) Company
makes no promise or representation that Employee will receive any salary
increases. Company shall review Employee’s salary on an annual basis.


Any increases to the salary as stated in Section 3 (a) above shall be
at the sole discretion of the Company, and the provisions of the Agreement
shall continue to apply as varied.


 


4.             MEDICAL AND HEALTH
BENEFITS.  The Company shall provide the
Employee with private medical and permanent health insurance in a category and
at a cost considered appropriate by Company for the Employee during this
Agreement.


 

















 


5.             HOLIDAYS.  The
Employee shall be entitled to twenty-five (25) working days’ holiday in each
holiday year in addition to the statutory public and bank holidays. Such
holidays other than public and bank holidays will be taken within the period of
twelve months starting on the 1st April in each year (“the holiday year”) at
such times as are agreed with the Board of Directors of the Company and shall
accrue from month to month. No more than five (5) days holidays may be carried
forward and no payment will be made in respect of holidays which have not been
taken by the expiry of the holiday year.


 


6.             ABSENCE.  If the
Employee is absent from Employee’s duties as a result of sickness or injury
Employee will be entitled to payment of Employee’s basic salary under Section 3
(a) hereof (except to the extent to which Employee receives any social security
or other insurance benefits as a result of such absence) for a period, (whether
consecutive or in aggregate) of no more than six months in any period of twelve
months and shall thereafter only be entitled to payment of basic salary at the
discretion of the Company. The Employee shall furnish to the Company
satisfactory evidence of such incapacity and the cause thereof and any payments
hereunder shall be counted towards any statutory sick pay payable by the
Company under the Statutory Sick Pay Act 1994 and the Social Security
Contributions and Benefits Act 1992. The qualifying days for the purposes of
the Acts are Monday to Friday inclusive.


 


7.                                       CONFIDENTIALITY
AND NON-COMPETITION.


 


(a) The
Employee shall not during the continuance of the Agreement or at anytime after
its determination disclose to any persons whatsoever and shall use Employee’s
best endeavors to prevent the publication or disclosure of any of the secrets
confidential knowledge business data or processed or any financial or trading
information relating to the Company or any of its subsidiaries or associated
companies or its or their customers which may come into Employee’s knowledge
during or in the course of Employee’s employment hereunder.


 


(b) All
documents lists and other materials excluding director materials coming into
the possession of the Employee shall be the property of the Company and the
Employee shall hand over all or any of them to the Company on demand and in any
event upon the termination of the Agreement for whatever cause.


 


(c) Upon
termination of the Agreement for any cause, the Employee shall not without
written consent of the Company, for a period of two years from such termination
be either directly or indirectly in any capacity engaged employed or associated
with any person firm or Company engaged in any work or process or research
similar to that to which the Employee has been employed by the Company or with
which Employee’s work for the Company has made Employee familiar providing
always that this sub-clause shall not apply if the Agreement is terminated
under the provisions of Section 9 hereof.


 


(d) The
Employee further covenants that during such period Employee will not solicit or
approach any firm person or Company who was a customer of the Company during
the period of two years prior to termination of the Agreement with a view to
obtaining business or employment nor will Employee approach any person employed
by the Company during such period prior to termination with a view to
terminating the relationship of that employee with the Company during the said
period.


 


(e) The
restrictions in this Section 7 are separate and severable restrictions and are
considered by the parties to be reasonable in all the circumstances.  It is agreed that if any such restrictions
by themselves, or taken together, shall be adjudged to go beyond what is
reasonable in all the circumstances for the protection of the legitimate
interests of the Company but would be adjudged reasonable if part or parts of
the wording were deleted, or the length or the geographical coverage of the
restrictions reduced, the relevant restriction or restrictions shall apply with
such deletion(s) or reduction(s) as may be necessary to make it or them valid
and effective.


 


8.             TERMINATION FOR CAUSE. 
The Company shall be entitled to terminate this Agreement forthwith without
any notice or payment in lieu of notice and the Employee shall not be entitled
to any payment compensation or damages by reason of such termination if:


 


(a) The
Employee breaks any terms of this Agreement


 

















 


(b) The
Employee neglects, omits or refuses to discharge the duties hereunder or to
comply with any lawful instruction given to Employee by the Board


 


(c) The
Employee is guilty of gross misconduct or is convicted of any criminal offense
involving dishonesty


 


(d) The
Employee is declared bankrupt or a receiving order is made against Employee or
Employee makes or attempts to make any composition with Employee’s creditors


 


(e) For a
period of 180 working days (whether consecutive or in aggregate) in any period
of one year the Employee has been absent from Employee’s duties as a result of
sickness or injury whether mental or physical


 


(f) The fixed
term of this Agreement, as set out in Section 1, expires and Company had not
previously agreed to a renewal of the Agreement.


 


9.             TERMINATION BY COMPANY. 
The Company can terminate this Agreement for any other reason by giving
to the Employee three (3) months notice in writing or payment in lieu of
notice.  In addition the Company may
require the Employee to retire from employment at the age of 65.


 


10.           TERMINATION BY
EMPLOYEE.  The Employee may terminate
this Agreement at any time by providing three (3) months written notice to the
Company.


 


11.            EMPLOYMENT
RIGHTS.  For the purposes of the
Employment Rights Act 1996 the Employee is hereby given written notice of the
following matters:


 


(a) There is a
pension scheme in existence in which the Employee is entitled to participate by
virtue of Employee’s employment hereunder full particulars of which are set out
in a booklet which has been given to the Employee (or which may be read during
normal working hours on application to the Company Secretary)


 


(b) The
Employee has been continuously employed by the Company since October 17, 1994.


 


(c) The
disciplinary rules, which apply to the Employee by virtue of Employee’s
employment hereunder, are specified in Appendix 1 to this Agreement.


 


(d) The
grievance procedure, which applies to the Employee by virtue of Employee’s
employment hereunder, are specified in a Appendix 2 to this Agreement.


 


(e)
Notwithstanding what is stated in Appendix 1 or 2,theEmployee should refer in
writing any grievance about Employee’s employment hereunder or any disciplinary
decision relating to the Employee, to any member of the Raining Data
Corporation Board and the reference will be dealt with by discussion and a
majority of those present at the relevant Board meeting at which the grievance
is discussed.


 


(f) The
Employee’s normal place of work will be within twenty miles of the Company’s
present headquarters at Mitford House, Benhall, Saxmundham, Suffolk, UK.  However, from time to time the Employee may
be required to travel within and outside the UK for business reasons.  Required travel may be worldwide in nature.


 


12.           NOTICES.  Notices
given in pursuance of this agreement shall be in writing and if to be given to
the Company delivered or dispatched by registered or recorded delivery post to
its registered office and if to be given to the Employee handed to other or
sent to Employee’s last known residential address in Britain by registered or
recorded delivery post. A notice dispatched by post is deemed to be given three
days’ after dispatch.


 

















 


13.           PREVIOUS CONTRACTS.
The contractual terms in this Agreement shall be in substitution for all or any
existing contracts of employment entered into between Employee and the Company
which cease to have effect on the date Employee signs this Agreement as set out
below.


 


AS WITNESS THE HANDS OF THE EMPLOYEE AND AN
AUTHORIZED EMPLOYEE ON BEHALF OF THE COMPANY THE DAY AND YEAR FIRST BEFORE
WRITTEN


 


On behalf of Raining Data Corporation:


 


	
  /s/ Brian C. Bezdek

  	
   

  	
   /s/ Gwyneth M. Gibbs

  
	
  Name & Title

  	
  Gwyneth M. Gibbs

  
	
   

  	
   

  
	
   

  	
   

  
	
  May 13, 2004

  	
   

  	
  May 12, 2004

  
	
  Date

  	
  Date