Exhibit 10.7
SECONDMENT AGREEMENT
THIS AGREEMENT is made the day of APRIL 2000
BETWEEN:
(1) PowerChannel Holdings Inc ("PowerChannel US"), a company incorporated in
the State of Delaware, USA whose principal office is at ▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇; and
(2) PowerChannel Europe Limited (the "Company"), a company registered in
England and Wales (registered number: 3632372) whose registered office
is at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ("PCE"); and
(3) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
(the "Secondee").
WHEREAS:
(A) The Secondee is employed in the USA by PowerChannel US under the terms
and conditions of an employment agreement dated 1 March 2000 (the
"Agreement").
(B) Pursuant to clause 2(b) of the Agreement it has been agreed between
PowerChannel US and the Company that the services of the Secondee will
be provided by PowerChannel US to the Company on a full-time basis (the
"Secondment") for the period set out in this agreement (the "Secondment
Term").
(C) This agreement sets out the terms and conditions of the Secondment.
(D) The Agreement will continue throughout the Secondment with such
temporary variations as agreed between PowerChannel US and the Secondee
as are necessary for the effective operation of the Secondment and this
agreement. However, PowerChannel US and the Secondee agree that nothing
in this agreement conflicts with the Secondee's obligations and duties
under the Agreement.
(E) PowerChannel US and the Secondee agree that the Secondee is subject to
all Intellectual Property Agreements between PowerChannel US and the
Company and it is also agreed that nothing in this agreement will
conflict with the Secondee's obligations and duties under those
Intellectual Property Agreements and for the avoidance of doubt in the
event of any conflict the Intellectual Property Agreements
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between PowerChannel US and the Company will take precedence over the
Agreement and in turn the Agreement will take precedence over the
Secondee Agreement.
(F) The consideration for this agreement is the continuing benefits received
by the Secondee under the Agreement, the benefit of the Secondee's
services to the Company and the benefit of providing those services to
PowerChannel US in respect of the expansion of its European operation.
OPERATIVE PROVISIONS:
1 Secondment Term
The Secondment Term will begin on April 2000 and will continue for a
maximum period of 18 months, expiring on October 2001, unless or
until terminated pursuant to clauses 17 or 18 below. On termination of
the Secondment, howsoever occasioned, the Secondee will return to his
employment with PowerChannel US which will continue under the terms of
the Agreement.
2 Job title and duties
2.1 The Secondee will be seconded by PowerChannel US to the Company in the
capacity of Chief Marketing Officer but agrees to carry out such
additional duties as the Company may from time to time require.
2.2 During the period of the Secondment the Secondee will:
2.2.1 faithfully and diligently perform such duties and exercise such powers
consistent with them as may from time to time be assigned to him;
2.2.2 obey all reasonable and lawful directions given to him by or on behalf
of the Company;
2.2.3 use his best endeavours to promote the interests of the Company;
2.2.4 observe any other policies, rules or procedures introduced by the
Company from time to time, which may be changed at the discretion of the
Company from time to time, and whether or not the same have contractual
force.
2.3 The Secondment is separate from and does not conflict with the
obligations of the Secondee under clause 3 of the Agreement, which will
continue to operate.
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3 Hours
3.1 During the Secondment the Secondee's normal hours of work shall be
9.00am to 6.00 pm Monday to Friday, with one hour per day for lunch.
Working hours may be varied from time to time depending on the needs of
the business, and the Secondee may be required to work such additional
hours as may be necessary for the efficient fulfilment of his duties.
The Secondee will not be entitled to any overtime payment in respect of
such additional hours.
3.2 The Secondee agrees that, in relation to the Secondment, paragraph 4(1)
of the Working Time Regulations 1998 shall not apply subject to the
Secondee giving three months' notice of termination in this regard.
4 Fidelity
During the Secondment the Secondee will devote the whole of his
attention and skill to the business of the Company and, with the
exception of PowerChannel US, agrees not to work for any other employer
or to provide his services (whether paid or unpaid) to any other person,
firm or company without the express written consent of the Company,
which the Company is under no obligation to give.
5 Place of Work
The principal place of work during the Secondment shall be the Company's
office currently at ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ [but which may
be subject to change from time to time]. However, the Secondee may be
required to work at such other location (including the premises of any
clients of the Company) as the Company may from time to time determine,
and to travel on the business of the Company both within the UK and
overseas.
6 Property
From time to time the Company may provide the Secondee with various
items of property or equipment to enable him to carry out his duties.
The Secondee agrees that he will take good care of such property and
will use his best endeavours to ensure that it is not damaged, lost or
stolen and shall at the Company's request and in any event at the
termination of the Secondment, howsoever arising, return to the Company
all such property or equipment as has been provided.
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7 Confidentiality
7.1 Save for the proper course of his duties during the Secondment and
following the termination of the Secondment the Secondee shall not at
any time, for whatever reason, whether directly or indirectly, use or
divulge to any person, firm or company whatsoever (and shall use his
best endeavours to prevent the unauthorised use or disclosure of) any
trade or business secrets or any other confidential information
including without limitation, knowledge, know-how, financial, computer
related or technical information, security information or secrets and
information relating to or belonging to the Company or its business or
the Group which he may obtain or receive during the Secondment. For the
purposes of this clause, confidential information includes but is not
limited to any information which the Secondee is from time to time told
is confidential, and also:
(a) confidential information regarding security, security systems,
information technology, computer systems (including both
hardware and software) developed or used, or proposed to be
developed or used, by the Company, or any of the Company's
clients, suppliers or contacts;
(b) the names, addresses and other details of the Company's
customers and suppliers or details of the contacts at those
customers and suppliers with whom the Company is accustomed to
dealing;
(c) information about the requirements of the Company's customers
for the Company's services and products;
(d) confidential information of or concerning the clients or any of
the employees, officers or shareholders of the Company, the
divulging of which might damage the standing of the Company or
its clients, employees, officers or shareholders;
(e) details of the Company's budgets, targets, business (including
marketing) plans, finances, bank accounts or other confidential
information relating to its financial or business affairs;
(f) lists of suppliers and customers and details of the terms on
which they do business with the Company.
These restrictions shall not apply to information ordered to be
disclosed by law or to information which becomes available to the public
generally (other than by reason of
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the Secondee's own default) without requiring a significant expenditure
of labour skill or money.
7.2 All notes, memoranda, records, books, documents, papers, programs,
plans, sketches, computer hard and software, film, videos, photographs
and writing in whatever medium, and all copies thereof made by the
Secondee relating to the business of the Company shall be and remain the
property of the Company, and the Secondee shall return all such property
and any other property of the Company in his custody or subject to his
power or control to the Company at any time that he receives a request
from the Company to do so, and in any event immediately upon termination
of the Secondment.
7.3 The Secondee shall not make any public statements to the press or any
third parties concerning the business or affairs of the Company without
the express prior written approval of the Company.
8 Copyright
8.1 The Secondee acknowledges and agrees that all rights in the nature of
copyright created by him in the course of the Secondment shall belong
absolutely to the Company throughout all jurisdictions and in all parts
of the world together with all rights of registration extensions and
renewal (where relevant).
8.2 For the avoidance of doubt and by way of perfection of legal rights the
Secondee hereby assigns by way of legal assignment all rights and
interest in such copyright and rights in the nature of copyright to the
Company.
8.3 The Secondee recognises and accepts that the Company may edit, copy, add
to, take from, adapt, alter and translate the products of his services.
8.4 To the full extent permitted by law the Secondee irrevocably and
unconditionally waives the benefits of any provision of law known as
"moral rights", including any moral rights he may otherwise have had
under sections 77 to 85 inclusive of the Copyright, Designs and Patents
▇▇▇ ▇▇▇▇.
8.5 The Secondee agrees he will at the Company's request and expense execute
such further documents or deeds and do all things necessary or
reasonably required to confirm and substantiate the rights of the
Company under this clause, including after the termination of his
Secondment howsoever arising if such rights arose before termination.
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8.6 The Secondee may not without the express written permission of the
Company show any work in which the Company owns the copyright or which
otherwise belongs to the Company to a third party and even if the
Company agrees, he can only do so on condition that appropriate
accreditation is given to the Company.
9 Inventions
9.1 The Secondee's duties may include a review of the Company's products and
services with a view to improving them by new and original inventions
and implementing improvements by means of such inventions and of
applying established techniques, processes and methods not previously
used in the particular application by the Company. The following shall
apply to the Secondment:
9.1.1 any invention (relevant to or capable of use in the business of the
Company), made by the Secondee wholly or substantially in the course of
his normal duties or duties assigned to him, and whether alone or in
conjunction with others, shall to the full extent of his interest in the
invention and so far as the law allows, be the exclusive property of the
Company hereby assigned by the Secondee to the Company. The Secondee
will also undertake at the expense of the Company to execute any formal
and additional assignment required by the Company to vest or to confirm
the vesting in it of such invention;
9.1.2 the Secondee agrees that he will immediately disclose any such invention
to the Company in confidence but otherwise will treat the invention as
confidential information failing within the clause above;
9.1.3 the Company has no liability to account to the Secondee for any revenue
or profit derived from or resulting from any invention belonging to the
Company but this does not prejudice any of the Secondee's rights under
section 40 of the Patents ▇▇▇ ▇▇▇▇.
10 Remuneration
10.1 During the Secondment the Secondee will:
10.1.1 continue to be paid in the USA under the terms of the Agreement;
10.1.2 receive a monthly living allowance or such sum as is otherwise agreed
between the parties to enable the Secondee comfortably to live and work
in the UK;
10.1.3 be provided with rented accommodation to enable the Secondee to
comfortably live in the UK. The Company will be responsible for paying
the rent on the
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accommodation provided but the Secondee will be responsible for all
other costs and outgoings in relation to the accommodation, Council tax,
utilities and telephones etc;
10.1.4 be provided with a car for the period of the Secondment. The car will be
provided by the Company to the Secondee;
10.1.5 be eligible to participate in the private health insurance scheme
operated by the Company, such insurance to cover both the Secondee and
his dependants;
10.1.6 be eligible to be covered by the Permanent Health Insurance Scheme
currently operated by the Company.
11 Pension
During the Secondment the Secondee's pension arrangements in the USA
will continue.
12 Expenses
The Company will reimburse all reasonable travelling hotel and other
expenses necessarily and properly incurred by the Secondee in or about
the proper performance of his duties in connection with the Secondment,
provided:
12.1 he gives the Company such evidence of expenditure as the Company may
reasonable require; and
12.2 expenses will not be paid for travel between the Company's office and
the Secondee's home.
13 Holiday Entitlement
13.1 The Company's holiday year runs from [1 January] to [31 December] in any
calendar year.
13.2 In addition to public and bank holidays the Secondee shall be entitled
to minimum of 25 working days paid holiday in each holiday year, one of
which must be taken during the Christmas period.
13.3 In the holiday year in which the Secondment commences and in the holiday
year in which the Secondment terminates the Secondee shall be entitled
to 1/12th of his
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then annual holiday entitlement, to the nearest full day for each
complete calendar month worked.
13.4 Holiday may not be carried over from one year only, and no payment will
be due in respect of unused holiday entitlement. If the Secondment
terminates and the Secondee has taken more holiday than he is entitled
to, the Company may deduct such overpaid holiday from his final salary
payment and the Secondee, by executing this agreement, specifically
consents to any such deduction being made. The Secondee will not be
entitled to be paid for holiday due but not taken at the time of the
termination of the Secondment.
13.5 No more than two weeks' holiday entitlement shall at any time be taken
consecutively without the prior agreement of the Company.
14 Sickness
14.1 If the Secondee is prevented from attending work due to sickness, injury
or other incapacity he shall notify his manager of this fact as soon as
possible on the first day of sickness and shall thereafter keep his
manager informed of the reasons of his continued absence and provide
such information as to his condition and the date of his expected return
to work as the Company reasonably requires. If the Secondee is absent
for 5 or more days, he shall provide the Company with a medical
certificate for the whole period of his absence specifying the reason
for his absence. Thereafter he will provide the Company with medical
certificates on a weekly basis. If the Secondee is absent for less than
five days he shall supply the Company with a self-certificate stating
the reason for his absence.
14.2 Sick pay is paid at the absolute discretion of the Company. However,
provided the Secondee meets the statutory requirements he may be
eligible for Statutory Sick Pay.
14.3 The Company may require the Secondee at any time to undergo a medical
examination by a properly qualified medical practitioner of the
Company's choice and at the Company's expense. The Secondee agrees that
the Company may be provided with a copy of the medical report prepared
by such medical practitioner as a result of an examination and the
Secondee agrees to authorise his own GP to release to the said medical
practitioner the relevant extracts from his medical records.
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15 Grievances
If the Secondee has a grievance he should deal with it in accordance
with the grievance procedure through PowerChannel US.
16 Disciplinary Procedure
The Secondee is subject to the disciplinary procedure he was subject to
whilst working under the Agreement and this will continue to apply in
accordance.
17 Termination
17.1 The Secondment may be terminated at any time by the Secondee or the
Company giving to the other 13 months prior written notice of
termination. The Company may terminate the Secondment with immediate
effect by making a payment in lieu of notice equivalent to 13 months net
basic salary. On termination of the Secondment, whether by expiry of the
Secondment term or otherwise and howsoever occasioned, the Secondee will
return to his employment under the Agreement with PowerChannel US.
17.2 The Company may terminate the Secondment with immediate effect and
PowerChannel US will require the immediate return of the Secondee to
resume working under the Agreement in the event that certain investors
confirm that this action should be taken to either PowerChannel US or
the Company.
17.3 The Company may at any time terminate the Secondment without notice, and
without payment in lieu of notice, if the Secondee commits any serious
breach of this agreement and fails to remedy such breach within a
reasonable period (to the reasonable satisfaction of the Company) or is
guilty of gross misconduct. Gross misconduct includes but is not limited
to circumstances where the Secondee:
17.3.1 is convicted of any criminal offence (other than a minor road traffic,
offence where the penalty is limited to a fine);
17.3.2 is under the influence of illegal drugs during working hours;
17.3.3 is guilty of conduct which in the reasonable opinion of the Board may
bring him or the Company into disrepute;
17.3.4 becomes bankrupt or compounds with his creditors generally or has an
interim order made against him under the Insolvency ▇▇▇ ▇▇▇▇;
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17.3.5 become in the reasonable view of the Company incapable of performing his
duties by reason of any mental disorder within the meaning of the Mental
Health ▇▇▇ ▇▇▇▇.
17.4 Where the Secondee is accused of an act of misconduct the Company may
suspend him [on full pay for a maximum period of 14 days].
18 Termination for incapacity
The Company may terminate the Secondment by not less than one month's
written notice given at any time if the Secondee is incapacitated by
reason of ill-health or accident performing his duties for the Company
for a total period of 100 days or more (whether consecutive or not) in
any preceding 12 month period.
19 Collective Agreements
There are no collective agreements which affect the Secondment.
20 Complete Terms
21 The contractual terms set out in this letter supersedes all previous
contractual arrangements between the parties regarding the Secondment.
The terms of the Secondment can only be varied in writing.
22 Governing Law
This agreement shall be governed by and construed in all respects in
accordance with the laws of England and the parties agree to submit to
the exclusive jurisdiction of the English Courts.
Signed by )
for and on behalf of POWERCHANNEL )
HOLDINGS INC )
Signed by )
for and on behalf of POWERCHANNEL )
EUROPE LIMITED )
Signed by )
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ )
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