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EXHIBIT 10.4
DATED 9TH DECEMBER, 1999
SMARTIRE EUROPE LIMITED
AND
IAN ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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SERVICE AGREEMENT
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1 THIS DEED is made on 9 th December 1999
BETWEEN:
(1) SMARTIRE EUROPE LIMITED (Company No. 351661) whose registered office is
situated at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"COMPANY"); and
(2) IAN ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of O'Deer O'Prey, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (the "EXECUTIVE")
IT IS AGREED as follows:
1. INTERPRETATION
1.1 In this Agreement:
(a) "ASSOCIATED COMPANY" means:
(i) a subsidiary of the Company or of the Company's
holding company; and
(ii) the holding company (as defined in section 736
Companies Act 1985) of the Company.
(b) "BOARD" means the board of directors of the Company;
(c) "GROUP" means the Company and its associated companies for the
time being and "GROUP COMPANY" means any one of them;
(d) "RECOGNISED INVESTMENT EXCHANGE" has the same meaning as in
section 207 of the Financial Services ▇▇▇ ▇▇▇▇;
(e) "SENIOR EMPLOYEE" means any person who works for the Company
and earns in excess of L25,000 per annum;
(f) "SMARTIRE" means SmarTire Systems Inc. of British Columbia,
Canada.
(g) "STAFF HANDBOOK" means the Company's generally applicable
Staff Handbook as in force from time to time. On signing this
Agreement, the Executive acknowledges that he has been
provided with a current copy of the Staff Handbook and
confirms that he accepts the terms and agrees to comply with
the policies therein. For the avoidance of doubt, where there
is a discrepancy between the terms of this Agreement and the
general contractual terms and conditions in the Staff
Handbook, the terms and conditions set out in this Agreement
will prevail.
(h) "SUBSIDIARY" means a subsidiary within the meaning of section
736 of the Companies ▇▇▇ ▇▇▇▇; and
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(i) "WORKING DAY" means a day other than a Saturday, Sunday or
bank or other public holiday in England.
1.2 References in this Agreement to a person include a body corporate and
an unincorporated association of persons and references to a company
include any body corporate.
1.3 Any reference in this Agreement to a statutory provision includes any
statutory modification or re-enactment of it for the time being in
force.
1.4 Clauses 1.1 to 1.3 above apply unless the contrary intention appears.
1.5 The headings in this Agreement do not affect its interpretation.
1.6 Where appropriate, references to the Executive include his personal
representatives.
2. APPOINTMENT
The Company shall employ the Executive and the Executive shall serve
the Company from 1 August 1999 as Managing Director, or in such other
capacity as SmarTire and the Executive may from time to time agree on
the terms set out in this Agreement (the "Appointment"). The
Executive's period of continuous service started on 16 February 1998.
3. DUTIES OF EXECUTIVE
3.1 The Executive shall use his best endeavours to promote and protect the
interests of the Group and shall not do anything which is harmful to
those interests.
3.2 The Executive shall diligently and faithfully perform such duties and
exercise such powers as may from time to time be assigned or delegated
to or vested in him by SmarTire and/or the Board. An outline of the
primary responsibilities of the Executive at the date of this Agreement
is attached at Schedule 1. SmarTire and/or the Board may also suspend
all or any of the Executive's duties and powers for such periods and on
such terms as it considers expedient (including a term that the
Executive shall not attend at the premises of any Group Company and/or
not perform any work on the Group's behalf) provided that those terms
are appropriate to the Executive's status as a Director.
3.3 During the Appointment the Executive shall promptly give to the Board
and/or SmarTire such information in connection with the affairs of the
Group and with such matters relating to the Appointment as it shall
require and shall comply with all proper instructions of the Board.
3.4 The Executive shall (unless prevented by ill-health or accident or
otherwise directed by the Board and/or SmarTire) devote the whole of
his time skill, ability and attention during normal business hours to
the duties of the Appointment and such additional time as is necessary
for the proper fulfilment of those duties. The Executive shall, without
additional remuneration, work such hours (including at weekends) as are
reasonably necessary in order for him to properly carry out his duties
under this Agreement.
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3.5 The Executive shall not accept any appointment to any office in
relation to any body, whether corporate or not, (other than a Group
Company) or directly or indirectly be interested in any manner in any
other business except:
(a) as holder or beneficial owner (for investment purposes only)
of any class of securities in a company if those securities
are listed or dealt in on a Recognised Investment Exchange and
if the Executive (together with his spouse, children, parents
and parents' issue) neither holds nor is beneficially
interested in more than five per cent. of the securities of
that class; or
(b) with the consent in writing of SmarTire and/or the Board (such
consent being in their absolute and sole discretion) which may
be given subject to any terms or conditions which the Company
requires.
3.6 The duties of the Appointment shall relate primarily to the United
Kingdom at such places as the Company may from time to time reasonably
require but shall extend to travel abroad (subject to the payment of
proper expenses) when reasonably required by the Company for the proper
performance of his duties.
3.7 Subject always to Clause 3.6 above, the Executive will normally be
based at the Company's premises at ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
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4. REMUNERATION
4.1 The Company shall pay to the Executive a salary at the rate of L67,000
per annum.
4.2 The Executive's salary shall be reviewed by the SmarTire Board of
Directors at the end of each Company financial year unless otherwise
agreed, the first review to be on or about 1 August 2000, but without
any obligation to increase the same.
4.3 The Executive's bonus provision shall be as set out in Schedule 2.
5. EXPENSES
The Company shall reimburse the Executive (on production by him of such
evidence as it may reasonably require) the amount of all travelling,
hotel and other expenses properly and reasonably incurred by him in the
discharge of his duties under this Agreement.
6. CAR
6.1 The Company shall provide the Executive with a car of a type from time
to time mutually agreed upon between the Company and the Executive in
accordance with Company policy as in force from time to time but of a
quality reasonably appropriate to his status (in the reasonable opinion
of the Board) for his use in the performance of his duties and, subject
to any restrictions or conditions from time to time imposed by the
Company, the Executive may use the car for his private purposes.
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6.2 The Company shall pay all normal servicing, road tax, insurance and
running expenses in relation to the car and all fuel expenses whether
related to business or, subject to 6.1 above, such private use as the
Board considers reasonable.
6.3 The Executive shall at the expense of the Company maintain the car in
good running order, and shall observe the terms and conditions of the
insurance policy relating to it and shall keep such records in relation
to business use as may be necessary to satisfy any queries in relation
thereto which may be raised by the Inland Revenue and the Executive
shall be responsible for the payment of any taxes assessed on him for
the use of the car.
6.4 As at the date of this Agreement the car provided to the Executive is a
Saab 9.5, as delivered on 23 April 1998. The Company reserves the right
in its absolute discretion to revise the policy in part or in whole at
the date of termination of the existing lease in April 2000 in favour
of a comparable car allowance.
6.5 The Executive shall inform the Company immediately if he is
disqualified from holding a driving licence and this clause shall not
apply during any period of disqualification or any period during which
he is in receipt of benefits under the PHI scheme at Clause 7.1(c)
below.
6.6 The Executive shall return the car, its keys and all associated
documentation to the Company's registered office or such other location
as the Company shall request immediately upon the termination of the
Appointment (whether terminated lawfully or not) or at any other
reasonable time, if so requested, for the purpose of inspection and/or
maintenance. The Company shall be entitled to withhold any sums owing
to the Executive on the termination of his Appointment in any way
(whether lawfully or not) until this obligation is complied with.
7. BENEFIT SCHEMES
7.1 The Executive is entitled to membership of the following schemes (each
referred to below as an "insurance scheme"):
(a) a private medical expenses insurance scheme providing such
cover for the Executive his wife and dependent children under
the age of 18 as the Company may from time to time notify to
him;
(b) a life insurance scheme under which a lump sum benefit shall
be payable on the Executive's death while the Appointment
continues; the benefit 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 two times the Executive's basic annual
salary at his death;
(c) a long-term disability insurance scheme ("PHI") providing
salary continuance for the Executive for such period and on
such terms as the Company shall from time to time notify him.
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7.2 Benefits under any insurance scheme shall be subject to the rules of
the scheme and the terms of any applicable insurance policy and are
conditional on the Executive complying with and satisfying any
applicable requirements of the insurers. Copies of these rules and
policies and particulars of the requirements as amended from time to
time 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.
7.3 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 (after the Executive has
been examined by a medical practitioner nominated by the insurers or by
the Company) 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. In
addition, the Executive shall be responsible for and shall indemnify
the Company in respect of any taxation or statutory levy assessed upon
him in respect of any benefits he receives under any insurance scheme
cover provided for him by the Company.
8. MEDICAL AND SICKNESS
8.1 The Executive shall be paid in full during any period of absence from
work due to sickness or injury not exceeding 60 Working Days (in
aggregate) in any period of 12 consecutive months subject to the
provisions of Clause 13 and to the production of satisfactory evidence
from a registered medical practitioner in respect of any period of
absence if required by the Company. The Executive's salary during any
period of absence due to sickness or injury shall be inclusive of any
statutory sick pay to which he is entitled and the Company may deduct
from his salary the amount of any social security benefits he may be
entitled to receive.
8.2 In the case of prolonged or frequent absences the Company may 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 and shall provide the
Company with such formal consents as may be necessary for this purpose
in accordance with the Access to Medical Reports 1988 with a view to
the Company establishing his likely future fitness for work.
8.3 If in the reasonable opinion of the Company, the Executive is incapable
by reason of physical or mental health to carry out his duties under
this Agreement the Executive may be suspended from carrying out those
duties for so long as the Company in its discretion considers such ill
health to continue subject to the remuneration provisions of Clause 8.1
above.
8.4 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 any amount by way of compensation for loss of
earnings from that third party, he shall pay to the Company a sum equal
to the amount recovered or, if less, the amount paid to him by the
Company under Clause 8.1 above in respect of the relevant period of
absence as a result of that injury.
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9. HOLIDAYS
9.1 The Executive shall be entitled to holidays in accordance with the
provisions set out in the Staff Handbook for full-time employees.
9.2 The Executive may take his holiday at such time or times as may be
agreed in advance with the Company (to ensure that the Executive's
holiday does not unduly affect the operations of the Company).
9.3 The entitlement to holiday set out in Clause 9.1 above may be increased
from time to time subject to the approval of the SmarTire Board of
Directors.
10. CONFIDENTIAL INFORMATION
10.1 The Executive shall not (except with the prior written consent of the
Board) make use of, publish or divulge to any person, and shall use all
reasonable endeavours to prevent the use, publication or disclosure of,
any information of a confidential or secret nature:
(a) concerning the business of the Company or any Group Company
and which comes to his knowledge during the course of or in
connection with his employment or his holding any office
within the Group from any source within the Company or any
Group Company: or
(b) concerning the business of any person having dealings with the
Company or any Group Company and which is obtained directly or
indirectly in circumstances in which the Company or any Group
Company is subject to a duty of confidentiality in relation to
that information.
10.2 In relation to Clause 10.1 above, the Company specifically, but
without limitation, draws to the Executive's attention the confidential
nature of information relating to:-
(a) the business methods, corporate plans, management systems,
finances, new business opportunities or development projects
of any Group Company; or
(b) the marketing or sales of any past or present or future
products, goods or services of any Group Company including but
not limited to customer names and lists and other details of
customers, sales targets, sales statistics, market share
statistics, prices, market research reports and surveys and
other professional materials; or
(c) future projects, business development or planning, commercial
relationships and negotiations; or
(d) any trade secrets or other information relating to the
provision of any product or service of any Group Company; or
(e) methods of manufacturing, storing, distributing and labeling
any products manufactured by any Group Company; or
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(f) any other information specifically identified by the Company
as confidential from time to time or known to the Executive as
being held by the Company or any Group Company under a duty of
confidentiality to a third party, in either case coming to his
attention in the course of or for the purposes of his duties
under this Agreement.
10.3 This clause shall not apply to information which is:
(a) used or disclosed in the proper performance of the Executive's
duties or with the prior written consent of the Company;
(b) ordered to be disclosed by a court of competent jurisdiction
or otherwise required to be disclosed by law; or
(c) in the public domain, other than directly or indirectly by
reason of the act or default of the Executive.
10.4 In relation to information of a confidential nature the Executive:
(a) shall notify the Company immediately upon discovery of any
unauthorised use or disclosure of such information and shall
actively assist the Company in every reasonable manner to aid
the Company to regain possession of such information and
prevent all such further use;
(b) the Executive shall return all originals, copies,
reproductions and summaries of or relating to such information
at the request of the Company or, on the Company's
instructions, ensure destruction of the same.
10.5 The Executive shall not other than with the approval of the Board make
or issue any press, radio or television statement or publish or submit
for publication any letter or article relating directly or indirectly
to the business or affairs of the Company, nor will the Executive
encourage, assist or procure any other person, firm or Company to do
anything, if done by him, which would be in breach of this sub-clause.
10.6 This Clause shall continue to apply after the termination of the
Appointment (whether terminated lawfully or not) without limit of time.
11. INTELLECTUAL PROPERTY
11.1 In this Clause 11 "Intellectual Property Rights" means a formula,
process, invention, improvement, utility model, trade ▇▇▇▇, service
▇▇▇▇, business name, copyright, design right, patent, know-how, trade
secret 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 a Group Company; and
(b) is invented, developed, created or acquired by the Executive
(whether alone or jointly with any other person) during the
period of the Appointment.
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11.2 Subject to the provisions of the Patents ▇▇▇ ▇▇▇▇, the entire interest
of the Executive in any Intellectual Property Right shall, as between
the Executive and the Company, become the property of the Company as
absolute beneficial owner without any payment to the Executive for it.
11.3 The Executive shall promptly communicate in confidence to the Company
full particulars of any Intellectual Property Right (whether or not it
is vested in the Company pursuant to Clause 11.2 above or otherwise)
and the Executive shall not use, disclose to any person or exploit any
Intellectual Property Right belonging to the Company without the prior
written consent of the Company.
11.4 With respect to any Intellectual Property Right which is not vested in
the Company pursuant to Clause 11.2 above or otherwise, the Executive
shall negotiate in good faith with the Company with a view to the
Company acquiring all the Executive's right, title and interest in that
Intellectual Property Right and, unless the Company has declined in
writing to negotiate or acquire such Intellectual Property Right, the
Executive shall not jeopardise the grant of any registration in respect
of that 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.
11.5 The Executive shall, at the request and expense of the Company, prepare
and execute such instruments and do such other acts and things as may
be necessary or desirable to enable the Company or its nominee to
obtain protection of any Intellectual Property Right vested in the
Company in such parts of the world as may be specified by the Company
or its nominee and to enable the Company to exploit any Intellectual
Property Right vested in the Company to best advantage.
11.6 The Executive hereby irrevocably appoints the Company to be his
attorney in his name and on his behalf to sign, execute or do any
instrument or thing 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 and in favour of any third party a certificate in
writing signed by any Director or the Secretary of the Company that any
instrument or act falls within the authority conferred by this clause
shall be conclusive evidence that such is the case.
11.7 The Executive hereby waives all of his moral rights (as defined in the
Copyright Designs and Patents Act 1988) in respect of any act of the
Company and any act of a third party done with the Company's authority
in relation to any Intellectual Property Right which is or becomes the
property of the Company.
11.8 The obligations of the Executive under Clauses 11.2 to 11.7 above shall
continue to apply after the termination of the Appointment (whether
terminated lawfully or not). Each of those obligations is enforceable
independently of each of the others and its validity shall not be
affected if any of the others are unenforceable to any extent.
12. CODES OF CONDUCT AND DISCIPLINARY AND GRIEVANCE PROCEDURES
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12.1 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 likely to have a business relationship with any Group
Company.
12.2 The Executive shall comply with all codes of conduct from time to time
adopted by the Board and with all proper standards of corporate
governance.
12.3 The Company's usual disciplinary procedure does not apply to the
Executive. Any disciplinary hearing will usually be heard by a SmarTire
Director. If the Executive seeks to appeal against any disciplinary
action taken against him, he should do so to the SmarTire Board
submitting written grounds for his appeal within seven days of the
action appealed against.
12.4 If the Executive has a grievance in relation to his employment he may
apply in writing to the SmarTire Board who will afford the Executive
the opportunity of a hearing before the SmarTire Board or a committee
of the SmarTire Board whose decision shall be final.
13. TERMINATION OF APPOINTMENT
13.1 Notwithstanding any other provision contained herein, the parties
hereto agree that the Manager may terminate this Agreement, with or
without cause, by giving ninety (90) days' written notice of such
intention to terminate. The Company may terminate this agreement at any
time for just cause without further obligation. In the event of
termination for any reason other than for just cause, the Company, at
its option, will either (a) continue to pay the salary under Clause 4.1
and provide the benefits under Clauses 6 and 7 until one year from the
date of termination or (b) pay one year's salary under Clause 4.1 in
lieu of notice. Any stock options that have been granted but that have
not yet vested shall immediately vest at the date of the final payment,
and may be exercised for a period of 30 days only after vesting.
13.2 Any payments made by the Company to the Executive upon the termination
of this Agreement shall be made in cash, or, if the Company does not
have available funds, in equal monthly cash installments over one year,
or in Remuneration Shares, or in a combination of cash and Remuneration
Shares, subject to regulatory approval. All payments required to be
made by the Company to the Manager pursuant to Section 13 hereof shall
be made in full, irrespective of the amount of the term remaining under
this Agreement.
13.2 If the Executive:
(a) becomes of unsound mind or is, or may be, suffering from
mental disorder and either:
(i) he is admitted to hospital for treatment under the
Mental Health ▇▇▇ ▇▇▇▇; or
(ii) an order is made by any competent court for his
detention or for the appointment of a receiver,
curator bonis or other person to exercise powers with
respect to his property or affairs; or
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(b) is unable to perform his duties by reason of ill-health,
accident or otherwise for a period or periods aggregating to
at least 60 Working Days in any period of 12 months;
(c) fails or neglects efficiently and diligently to discharge his
duties or is guilty of any material breach of his obligations
under this Agreement (including any consent granted under it);
or
(d) refuses to accept any changes in his Executive
responsibilities, duties or status from time to time as
reasonably determined by the Company provided that any such
changes will not affect his remuneration (including bonus) or
seniority; or
(e) is guilty of any serious breach or non-observance of any of
the provisions of this Agreement or directions of the Board or
SmarTire Board or continues after written warning to be guilty
of any continued or successive breaches or nonobservance of
any such provisions or directions or any other conduct which
affects or is likely to affect prejudicially the interests of
the Company, SmarTire or the Group or is convicted of an
arrestable offence (other than a road traffic offence for
which a non-custodial penalty is imposed); or
(f) makes a statement, promise or forecast which he knows to be
misleading, false or deceptive or dishonestly conceals any
material facts, or recklessly makes (dishonestly or otherwise)
a statement, promise or forecast which is misleading, false or
deceptive in relation to the affairs of the Company or any
Group Company; or
(g) becomes bankrupt or makes any arrangement or composition with
his creditors; or
(h) is disqualified from being a director of any company by reason
of an order made by any competent court; or
(i) carries out or neglects to carry out any action which in the
reasonable opinion of the Company may seriously damage the
interests of the Company or SmarTire or is willfully or
negligently guilty of any breach or non-observance of any code
of conduct, rule or regulation referred to in Clause 12.2 and
such breach has actually or potentially a material adverse
effect on the Company or the Group, and/or the business of the
Company or the Group and/or on the ability of the Executive to
properly carry out the terms of this Appointment; or
(j) commits any act of deliberate discrimination or harassment on
grounds of race, sex or disability; or
(k) is, in the reasonable opinion of the Company, unable at any
time properly to discharge his duties under this Agreement due
to the effects of drugs or alcohol; or
(1) commits any other act warranting summary termination at common
law including (but not limited to) any act justifying
dismissal with immediate effect
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in the terms of the Company's generally-applicable
Disciplinary Rules as laid out in the staff handbook (receipt
of which the Executive hereby acknowledges).
the Company may (whether or not any notice of termination has been
given under Clause 13.1 above) by written notice to the Executive
terminate the Appointment with immediate effect.
13.3 Any delay or forbearance by the Company in exercising its right of
termination shall not constitute a waiver of it.
13.4 During any period of notice of termination of the Appointment (whether
or not such notice has been given by the Company or the Executive) the
Company may require the Executive to take any holiday to which the
Executive is entitled under Clause 9 above at such time or times as the
Company may decide.
13.5 Clause 13.1 above does not limit the rights of the Company to suspend
any of the Executive's duties and powers under Clause 3.2 above during
any period after notice of termination of the Appointment has been
given by either party and in particular (without limitation) the
Company may exercise this right where the Executive leaves the
Company's employment in circumstances where it is reasonable for the
Board to believe that he shall be interested or concerned in a
business, company or firm carrying on, or about to commence, a business
which is, or is likely to be, competitive with any part of the business
of any Group Company with which the Executive was engaged or concerned
in the previous 12 months before the suspension started. In addition or
alternatively, the Company may during the whole or any part of such
period of notice require the Executive to perform duties (including any
modified duties arising from an exercise by the Company of its rights
under Clause 3.2 above) at such locations as the Company may require
consistent with Clause 3.6 above. Throughout any such period of
suspension the Executive's salary, and other benefits to which he is
entitled under this Agreement shall continue to be paid or provided by
the Company and during such time, the Executive acknowledges that his
duties of confidentiality and good faith continue to apply and that he
is not permitted to work for any other person, firm, client,
corporation or on his own behalf without the Company's prior written
permission (which is not to be unreasonably withheld). At any time
during such period the Executive shall, at the request of the Company,
immediately resign without claim for compensation from his office as a
Director of the Company and any Group Company and from any other office
held by him in the Company or any Group Company.
13.6 On the termination of the Appointment in any way (whether lawfully or
otherwise) the Executive shall immediately deliver to the Company or
its authorized representative all property in his possession, custody
or under his 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 his possession relating to the business or
affairs of any Group Company, without keeping any copies, notes or
extracts thereof. The Company may withhold any sums owing to the
Executive on the termination of his employment until the obligations in
Clause 13.6 have been complied with.
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13.7 The Executive hereby agrees that he will not at any time after the
termination of the Appointment in any way (whether lawfully or
otherwise) either personally or by his agent, directly or indirectly
represent himself as being in any way still connected with or
interested in the business of the Company or any Group Company.
14. PROTECTIVE COVENANTS
14.1 For the purposes of this clause:
(a) "Termination Date" means the date of termination of the
Appointment.
(b) references to a Group Company include its successors in
business where the succession occurs after the Termination
Date.
14.2 The Executive covenants with the Company (for itself and as trustee for
each Group Company but only whilst it remains a Group Company) that he
shall not for a period of 6 months after the Termination Date be
concerned in any business within the United Kingdom which is
competitive with any business carried on by the Company or a Group
Company and with which the Executive was actively involved during the
course of the 12 months immediately preceding the Termination Date and
in particular any tyre monitoring business provided by the Company or
any of its Group Companies (all of which is hereinafter referred to as
the "Restricted Business"). For this purpose the Executive is concerned
in a business if (without limitation):-
(a) he carries it on as principal or agent; or
(b) he is a partner, director, employee, secondee, consultant or
agent in, of or to 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, the Executive and any person connected with him (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.
14.3 The Executive covenants with the Company (for itself and as trustee for
each Group Company) that he shall not directly or indirectly on his own
account or on behalf of or in conjunction with any person for a period
of 6 months after the Termination Date within the United Kingdom
canvass or solicit business or custom from any customer or client of
the Company or a Group Company with whom the Executive was actively
involved in the course of his employment during the 12 months ending on
the Termination Date.
14.4 The Executive covenants with the Company (for itself and as trustee for
each Group Company) that he shall not directly or indirectly on his own
account or on behalf of or in conjunction with any person for a period
of 6 months after the Termination Date within the United Kingdom induce
or attempt to induce any supplier of the Company or a Group Company,
with whom the Executive was actively involved in the last 12 months of
his employment to cease to supply, or to restrict or vary the terms of
supply to, the
14
Company or the Group Company or otherwise interfere with the
relationship between such a supplier and the Company or the Group
Company.
14.5 The Executive covenants with the Company (for itself and as trustee for
each Group Company) that he will not directly or indirectly on his own
account or on behalf of or in conjunction with any person for a period
of 6 months after the Termination Date induce or attempt to induce any
person who was a Senior Employee of the Company or Group Company at the
Termination Date, and with whom the Executive had material dealings in
the course of the last 12 months of his employment, to leave the
employment of the Company or Group Company (whether or not this would
be a breach of contract by the Senior Employee) with a view to that
Senior Employee providing to another person, firm or company services
similar to and competitive with those he/she had provided to the
Company or Group Company in the 6 months preceding his/her departure.
14.6 The Executive covenants with the Company (for itself and as trustee for
each Group Company) that he will not directly or indirectly on his own
account or on behalf of or in conjunction with any person for a period
of 3 months after the Termination Date deal with or accept orders from
any customer or client of the Company or a Group Company as is referred
to in Clause 14.3 above in respect of the Restricted Business.
14.7 The Executive covenants with the Company (for itself and as trustee for
each Group Company) that he will not encourage, assist or procure any
other person, firm or company to do anything which, if done by him,
would be in breach of any of Clauses 14.2 to 14.6 above.
14.8 Each of the restrictions in each sub-clause in this Clause 14 above
shall be enforceable independently of each of the others and its
validity shall not be 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 were deleted, the restriction in question shall apply with
such modification as may be necessary to make it valid.
14.9 The Executive acknowledges that the provisions of this Clause 14 are no
more extensive than is reasonable to protect the legitimate business
interests of the Company and the Group, and further that the effect of
those provisions is not such as to prevent the Executive from earning a
living.
15. GENERAL
15.1 As from the effective date of the Appointment the Executive
acknowledges and warrants that all other Agreements or arrangements
between the Executive and any Group Company relating to the employment
of the Executive shall cease to have effect and accordingly any sum or
sums paid to the Executive by way of remuneration or other benefit
under any such other Agreements or arrangements in respect of any
periods since that date shall be deemed to have been received by the
Executive on account of the relevant amounts payable to him under this
Agreement.
15.2 This Agreement shall be governed by and construed in accordance with
English law.
15.3 No collective agreement forms any part of the Executive's contract of
employment.
15
16. NOTICES
16.1 Any notice or other document to be served under this Agreement shall,
in the case of the Company, 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, shall be delivered to
him or sent by first class post to his usual or last known place of
residence.
16.2 Any such notice or other document shall be deemed to have been served:
(a) if delivered, at the time of delivery;
(b) if posted, at 10.00 a.m. on the second Working Day after it
was put into the post]; or
(c) if sent by telex or facsimile process, at the expiration of
two hours after the time of despatch, if despatched before
5.00 p.m. on any Working Day, and in any other case at 10.00
a.m. on the Working Day following the date of despatch.
16.3 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
despatched as the case may be.
IN WITNESS of which this deed has been executed and has been delivered on the
first date which appears on page 1.
EXECUTED as a deed by the Company acting by: )
)
)
and )
)
/s/ W. A. PAGE
............................................
Director
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
............................................
Director/Secretary
)
SIGNED as a deed by the Executive )
) /s/ ▇▇▇ ▇▇▇▇▇▇▇
in the presence of: )
16
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
............................................
Witness signature
▇▇▇▇▇ ▇▇▇▇▇▇▇
............................................
Name
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
............................................
Abingdon, Oxon.
............................................
Address
17
SCHEDULE I
EXECUTIVE'S PRIMARY RESPONSIBILITIES
1. The Executive will be expected as part of his duties to create value
for SmarTire's shareholders by leading and managing the European
Operations of the Company.
2. The Executive shall be responsible for the management of the European
Operations of SmarTire including the development and execution of
business plans, marketing strategies, sales and financial objectives
for the Company. The Executive is responsible for providing regular
reports to SmarTire which measure the Company's progress towards
achieving defined goals and objectives and define actions to address
issues. The Executive is responsible for the development of the
European organization structure, staffing and operations to achieve the
Company's business plan and financial objectives. The Executive shall
work with SmarTire management to assist in defining and completing
corporate objectives as may be determined. The Executive shall report
to the President and Chief Operating Officer of SmarTire.
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SCHEDULE 2
EXECUTIVE'S BONUS PROVISIONS
1. The Executive shall be entitled to be considered for a performance
related bonus wholly at the discretion of the SmarTire Board of
Directors. The bonus payments shall be calculated by the SmarTire Board
of Directors in accordance with certain criteria to be set by the
SmarTire Board of Directors as the SmarTire Board of Directors may from
time to time notify the Executive, but without any obligation on the
part of the SmarTire Board of Directors to award any bonus payment.
2. In any year in which a bonus payment is approved by the SmarTire Board
of Directors, the bonus payment will be made within four months of the
publication of the annual accounts for the relevant year.
3. Subject to the commencement of the SmarTire's "Incentive Compensation
Plan" (the "Plan"), the Executive's bonus provisions will be governed
by the Plan and the arrangements in paragraph 1 of this Schedule will
cease to apply. As and when the Plan receives formal approval from the
SmarTire Board of Directors the Executive will receive full details of
the Plan and how it applies to him.