exv10w7



 





EXHIBIT
10.7









DATED 1 November 2003




AVANADE UK LTD



and



Adam Warby




 






CONFIDENTIAL INFORMATION, INVENTIONS

AND NON-COMPETITIVE AGREEMENT




 






ALLEN & OVERY

London

EP:149655.1




\\av-usseafs102\pub\Avanade\Teams\HR\CompBen\Exec\

ExecAgreements\20031101 Warby NonCompete.tif





 









 












THIS DEED is made on 1 November 2003,



BETWEEN:





	(1)	 	AVANADE UK LTD (4042711) whose registered office is at 2nd Floor, 135-141
Wardour Street W1F OUT (the “Company”);
	 
	(2)	 	Adam Warby (the “Executive”).
	 
	1.	 	Interpretation
	 
	(1)	 	In this Deed, the following expressions shall have the following meanings:
	 
	 	 	“Associated Company” means:






	 	(a)	 	a company which is not a Subsidiary of the Company but whose issued equity
share capital (as defined in section 744 of the Companies Act 1985) is owned as to
at least 20 per cent. by the Company or one of its Subsidiaries; and
	 
	 	(b)	 	a Subsidiary of a company within (a) above;






	 	 	“Board” means the directors of the Company present at a duly convened and quorate meeting
of the directors or of a committee of the directors duly appointed for the purpose in
question;
	 
	 	 	“Group” means the Company, its Subsidiaries and Associated Companies for the time being
(including the Company) and “Group Company” means any one of them;
	 
	 	 	“Recognised Investment Exchange” means a relevant EEA market as defined in, or a market
established under the rules of any investment exchange specified in Schedule 2 to the
Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996; and
	 
	 	 	“Subsidiary” means a subsidiary within the meaning of section 736 of the Companies Act
1985
	 
	(2)	 	References in this Deed to a person include a body corporate and an unincorporated association of persons and references to a company include any body corporate.
	 
	2.	 	Confidential Information
	 
	2.1	 	You are aware that in the course of your employment with the Company you will have access
to and be entrusted with information in respect of the business and finances of the Company
and its dealings, transactions and affairs and likewise in relation to any other Group
Company all of which information is or may be Confidential Information.
	 
	2.2	 	You shall not during your employment or afterwards, use or exploit (except for the benefit
of the Group) or divulge to any third party any Confidential Information except that you
shall be permitted to do so:-






	 	2.2.1	 	when necessary in the proper performance of the duties of your employment;
	 
	 	2.2.2	 	with the express written consent of the Board; or






 









 














	 	2.2.3	 	where this is required by law.






	2.3	 	You shall, during your employment, use your best endeavours to prevent the unauthorised
use or disclosure of any Confidential Information whether by any other officer, employee or
agent of the Group or otherwise and shall be under an obligation promptly and freely to
report to the Board any such unauthorised use or disclosure which comes to your knowledge.
	 
	2.4	 	You shall not, during your employment or at any time thereafter make, except for the
benefit of the Company or any Group Company, any copy, record or memorandum (whether or not
recorded in writing or on computer disk or tape) of any Confidential Information and any
such copy record or memorandum made by you during your employment shall be and remain the
property of the Company and accordingly shall be returned by you to the Company on
termination of the employment or when required to do so by the Board.
	 
	2.5	 	You shall not during the course of your employment without the prior written consent of
the Board either directly or indirectly publish any opinion, fact or material or deliver any
lecture or address or participate in the making of any film, radio broadcast, internet or
television transmission or communicate with any representative of the media or any third
party relating to:-






	 	2.5.1	 	the business or affairs of the Company or any other Group Company or any of
its or their officers, employees, customers, clients, suppliers, distributors, agents
or shareholders; or
	 
	 	2.5.2	 	the development or exploitation of any Confidential Information or
Intellectual Property Rights (as defined in clause 3 below)






	 	 	and for the purpose of this clause media shall include television (terrestrial, satellite
and cable) radio, internet, newspapers and other journalistic publications.
	 
	2.6	 	In this Agreement “Confidential Information” means






	 	2.6.1	 	all information which relates to the business, finances, transactions,
affairs, products, services, processes, equipment or activities of the Company and
any other Group Company and which is designated by the Company and any other Group
Company as confidential; and
	 
	 	2.6.2	 	all information relating to such matters which comes to your knowledge in
the course of your employment and which, by reason of its character and/or the manner
of its coming to your knowledge, is evidently confidential.






	3.	 	Intellectual Property
	 
	3.1	 	In this clause “Intellectual Property Right” means a formula, process, invention, utility
model, trade mark, service mark, business name, domain name, copyright, design right,
patent, know-how, trade secret, database right and any other intellectual property right of
any nature whatsoever throughout the world (whether registered or unregistered and including
all applications and rights to apply for the same) which:






	 	(a)	 	relates to or is useful in connection with the business or any product or
service of the Company or any Group Company; or
	 
	 	(b)	 	is invented, developed, created or acquired by you (whether alone or
jointly with any other person) during the course of your duties during the period of
your employment.






 









 














	3.2	 	Subject to the provisions of the Patents Act 1977, your entire interest in any
Intellectual Property Right will, as between you and the Company or any Group Company,
become the property of the Company or any Group Company as absolute beneficial owner
without any payment to you for it.
	 
	3.3	 	You will promptly communicate in confidence to the Company full particulars of any
Intellectual Property Right (whether or not it is vested in the Company or any Group Company
pursuant to subclause (2) above or otherwise) and you must not use, disclose to any person
or exploit any intellectual Property Right belonging to the Company or any Group Company
without the prior written consent of the Company.
	 
	3.4	 	With respect to any Intellectual Property Right which is not vested in the Company or any
Group Company pursuant to subclause (2) above or otherwise, you will negotiate in good faith
with the Company with a view to the Company or any Group Company acquiring all your right,
title and interest in that Intellectual Property Right and, unless the Company or any Group
Company has, in writing, declined to negotiate or acquire the Intellectual Property Right,
you must not jeopardise the grant of any registration in respect of the Intellectual Property
Right by any public or non-confidential disclosure for a period of three months from the date
on which full particulars of it are communicated to the Company.
	 
	3.5	 	You must, at the request and expense of the Company, prepare and execute instruments and do
other acts and things as may be necessary or desirable to enable the Company or any Group
Company or its or their nominee(s) to obtain and maintain protection of any Intellectual
Property Right vested in the Company or any Group Company in those parts of the world as may
be specified by the Company or any Group Company or its [or their] nominee(s) and to enable
the Company or any Group Company to exploit any Intellectual Property Right vested in the
Company or any Group Company to best advantage.
	 
	3.6	 	You hereby irrevocably appoint the Company to be your attorney in your name and on your
behalf to execute or sign all such documents and do all such acts as may be necessary or
desirable to give effect to the provisions of this clause.
	 
	3.7	 	You hereby irrevocably and unconditionally waive any and all of your moral rights
(conferred by Chapter IV of the Copyright Designs and Patents Act 1988) and, to the extent
possible, all moral rights in any other jurisdiction, in relation to any Intellectual
Property Right which is or becomes owned by the Company or any Group Company, except to the
extent that you exercise such moral rights at the Company’s request and reasonable expense.
	 
	3.8	 	Your obligations under this clause continue to apply after the termination of your
employment (whether terminated lawfully or not). Each of those obligations is enforceable
independently of each of the others and its validity is not affected if any of the others is
unenforceable to any extent.
	 
	4.	 	Protective Covenants
	 
	4.1	 	In this clause:






	 	(a)	 	“Client” means any person, firm or company who at any time during the
Relevant Period was a client of the Company or any Group Company, with whom or which
you dealt other than in a de minimis way or for whom or which you were responsible
on behalf of the Company or any Group Company at any time during the said period;







 









 














	 	(b)	 	“Business” means:
	 
	 	 	 	(i) the business of providing computer system engineering or consulting services to
design, develop or modify enterprise or internet/e-commerce computer systems; or
	 
	 	 	 	(ii) the provision of any products or services which are at the Termination Date
either (a) produced, marketed or otherwise offered by the Company or any Group
Company, or (b) under research or development by the Company or any Group Company,
	 
	 	 	 	in either case in respect of which the Executive was actively engaged or concerned
in the course of his employment during the Relevant Period;
	 
	 	(c)	 	“Prospective Client” means any person, firm or company who has been engaged in
negotiations, with which you have been personally involved, with the Company or a
Group Company with a view to purchasing goods and services from the Company or
any Group Company in the Relevant Period;
	 
	 	(d)	 	“Relevant Period” means the period of 12 months ending on the Termination Date;
	 
	 	(e)	 	“Relevant Area” means any part of any country in which you were actively
involved in the business of the Company or another Group Company at any time during
the Relevant Period;
	 
	 	(f)	 	“Termination Date” means the date on which your employment with the Company
terminates; and
	 
	 	(g)	 	references to the Company or another Group Company include its successors in
business if the succession occurs after the Termination Date.






	4.2	 	You covenant with the Company that you will not, except with the Company’s consent, during
your employment and for a period of 12 months after the Termination Date be concerned in any
business which is carried on in the Relevant Area and which is competitive or likely to be
competitive with the Business. For this purpose, you are concerned in a business if:






	 	(a)	 	you carry it on as principal or agent; or
	 
	 	(b)	 	you are a partner, director, employee, secondee, consultant or agent in, of or
to any person who carries on the business; or
	 
	 	(c)	 	you have any direct or indirect financial interest (as shareholder or
otherwise) in any person who carries on the business; or
	 
	 	(d)	 	you are a partner, director, employee, secondee, consultant or agent in, of or
to any person who has a direct or indirect financial interest (as shareholder or
otherwise) in any person who carries on the business,






disregarding any financial interest of a person in securities which are listed or dealt in
on any Recognised Investment Exchange if that person, you and any person connected with you
(within the meaning of section 839 of the Income and Corporation Taxes Act 1988) are
interested in securities which amount to less than five per cent, of the issued securities
of that class and which, in all circumstances, carry less than five per cent, of the voting
rights (if any) attaching to the issued securities of that class.





 









 














	4.3	 	You covenant with the Company that you will not directly or indirectly on your own
account or on behalf of or in conjunction with any person during your employment and for a period
of 12 months after the Termination Date (except on behalf of the Company or any Group
Company):






	 	(a)	 	canvass or solicit business or custom from a Client or Prospective Client in
respect of services similar to those being provided by the Company or any Group
Company at the Termination Date, and with which services you were actively involved
in the course of your employment during the Relevant Period;
	 
	 	(b)	 	deal with a Client or Prospective Client in respect of services similar to
those being provided by the Company or any Group Company at the Termination Date and
with which services you were actively involved in the course of your employment
during the Relevant Period.






	4.4	 	You covenant with the Company that you will not directly or indirectly on your own account
or on behalf of or in conjunction with any person during your employment and for a period
of 12 months after the Termination Date induce or attempt to induce any employee to whom this
sub-clause applies to leave the employment of the Company or any Group Company (whether
or not this would be a breach of contract by the employee). This sub-clause applies to an
employee of the Company or any Group Company with whom you had material dealings in
the course of your employment during the Relevant Period and who is employed wholly or
mainly in a executive or managerial capacity.
	 
	4.5	 	The covenants in this clause are for the benefit of the Company itself and as trustee for
each other Group Company.
	 
	4.6	 	Each of the restrictions in each paragraph or subclause above are enforceable independently
of each of the others and its validity is not affected if any of the others is invalid. If any
of those restrictions is void but would be valid if some part of the restriction (including
part of any of the definitions in sub-clause (1)) were deleted, the restriction in question
applies with such modification as may be necessary to make it valid.
	 
	4.7	 	You acknowledge that your senior position with the Company and any Group Company gives you
access to and the benefit of confidential information vital to the continuing business of the
Company and any Group Company and influence over and connection with the Company’s customers,
suppliers, distributors, agents, employees, workers, consultants and directors and those of
any Group Company in or with which you is engaged or in contact and acknowledges and agrees
that the provisions of this clause are reasonable in their application to you and necessary
but no more than sufficient to protect the interests of the Company and any Group Company.
	 
	4.8	 	In the event that the Company requires you not to perform any of your duties and excludes
you from the Company’s premises and places you on garden leave in accordance with the terms
of your contract, the period of the protective covenants as set out in this clause 4 shall be
reduced by the length of any period on garden leave served before the Termination Date.
	 
	4.9	 	In consideration of you complying with the restrictions in this clause 4.2, the Company
shall continue to pay your salary monthly in arrears for the duration of the restrictions. In
the event that you fail to comply with any of the restrictions in clause 4.2, in addition to
any other remedies the Company may have, the Company shall cease to pay to you your salary
and you shall have no further entitlement to such salary. For the avoidance of doubt, if the
Company waives the restrictions at clause 4.2, you shall cease to be entitled to further
salary.







 









 














	4.10	 	If any person, during your employment or any period during which the
covenants in this clause apply, offers to you any arrangement or contract
which might or would cause you to breach any of the covenants, you will notify
that person of the terms of this clause.
	 
	5.	 	Miscellaneous
	 
	 	 	On termination of your employment with the Company and at any other time at
the Company’s request, you shall immediately deliver to the Company all
property in your possession, custody or under your control belonging to any
Group Company including (but not limited to) business cards, credit and charge
cards, security and computer passes, original and copy documents or other
media on which information is held in your possession relating to the business
or affairs of any Group Company
	 
	 	 	You shall not during or after your employment knowingly or willingly do or
cause or permit to be done anything which is calculated or may tend to
prejudice or injure the interests of the Group and if during your employment
you shall learn of any act or omission by any other person whether or not
employed by the Company which is calculated or may tend to prejudice or injure
the interests of the Company you shall promptly report it to the Board giving
all necessary particulars.
	 
	 	 	This Deed is governed by and construed in accordance with
English law.





DELIVERED AS A DEED on the date of this document.




	 	 	 	 	 
	SIGNED AND DELIVERED as a

	 	 	)	 
	deed

	 	 	)	 
	Antoinette Gaskell (UK HR Director)

	 	 	)
	   /s/ Antoinette Gaskell 
	on behalf of

	 	 	)	 
	AVANADE UK LTD in the presence of:

	 	 	)	 






	 	 	 	 	 
	EXECUTED as a deed by

	 	 	)	 
	 

	 	 	)	 
	 

	 	 	)	 
	in the presence of:

	 	 	)	 






	 	 	 	 	 
	Witness
	 	 	 	 
	 
	 	 	 	 
	Signature:

	 	Adam Warby
 

	 	 
	Name:

	 	ADAM WARBY	 	 
	 

	 	 	 	 
	Address:

	 	73 St. Marks Rd.	 	 
	 

	 	 	 	 
	 

	 	Henley-on-Thames,	 	 
	 

	 	 	 	 
	 

	 	Oxon, RG9 UK