DATED 10 January 2006 VIEWSONIC NETHERLANDS and JAN JENSEN
Exhibit
10.18
DATED
10 January 2006
VIEWSONIC
NETHERLANDS
and
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DIRECTOR’S
SERVICE AGREEMENT
asb
law
Innovis
House
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Tel:
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Fax:
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Ref:
AMDK/346968/2
DIRECTOR’S
SERVICE AGREEMENT
DATED
10
January 2006
PARTIES
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(A)
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VIEWSONIC
NETHERLANDS that
being
VIEWSONIC EUROPE LIMITED a
company registered in England & Wales under Company registration
number 3131161 operating out of Teleport Palace, Kings ▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ (“the Company”);
and
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(B)
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▇▇▇
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(“the Director”)
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OPERATIVE
PART
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1
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DEFINITIONS
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1.1
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In
this Agreement the following words shall, unless the context otherwise
requires, have the meanings set out
below:
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Agreement
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this
Agreement as may be amended, modified or supplemented from time to
time in
accordance with these provisions;
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Applicable
Exchange Rate
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is
in respect of the period prior to 1 January 2005, the Exchange Rate
on the
Commencement Date, and thereafter such other greater or lesser sum
as may
be published in the ViewSonic Europe Internal Exchange Rate Document
on
the later of 1 January or 1 July immediately preceding the date of
payment
of sums due to the Director or benefits to which the Director is
entitled
in any calendar month;
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Board
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the
Board of Directors from time to time of the
Company;
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Business
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the
business of the Company from time to time which shall include without
limitation the development and exploitation of intellectual property
rights owned by the Company;
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Commencement
Date
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18
October 2004;
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Revision
Date to Director’s
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1
January 2006
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Service
Agreement:
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Confidential
Information
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includes
but is not limited to:-
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(i)
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all
un-patented designs, drawings, data specifications, manufacturing
processes, testing procedures and all other technical business and
similar
information relating to the Business including all readable or computer
or
other machine readable data, logic, logic diagrams, flow charts,
coding
sheets, coding, source or object codes, listings, test data, test
routines, diagnostic programs or other material relating to or comprising
software which is part of the
Business;
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(ii)
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all
strategic information being all and any forward plans whether in
intangible or tangible form developed by the Company relating to
the
development of the Business and information relating to the implementation
of any such strategies developed;
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(iii)
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pricing
information which shall include all and any rates used by the Company,
prices charged to and terms of business with clients, suppliers or
customers of the Company;
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(iv)
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statistical
information and methods which shall include information relating
to
research activities, designs, formulae and all and any statistical
methods
used by the Company;
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(v)
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management
information which shall include financial information, results and
forecasts (save to the extent that these are included in published
and
audited accounts), any proposals relating to the acquisition or disposal
of a firm or business or any part thereof or to any proposed expansion
or
contraction of activities, details of employees and officers and
of the
remuneration and other benefits paid as far as this information relates
to
the Company;
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(vi)
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corporate
information which shall include all and any information whether in
intangible or tangible form relating to the business methods, corporate
plans, management systems, finances, maturing new business opportunities
or research and development projects of the Company or any Group
Company;
and
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(vii)
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any
confidential information which the Director is told is confidential
and
any information which has been given to the Company in confidence
by
businesses, investors, suppliers and other
persons.
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Copyright
works
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any
item of Confidential Information in which copyright or design right
subsists;
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Customer
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any
person, firm, Company or other organisation who or which during the
Relevant Period is or was negotiating with the Company for the provision
of Relevant Services or to whom or which the Company shall at any
time
during the Relevant Period have provided any Relevant
Services;
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Documents
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all
records, reports, documents, papers, computer generated data and
other
materials whatsoever originated by or upon behalf of the Director
pursuant
to this Agreement, including all and any data stored in any computer
system or database;
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Employee
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any
person employed by the Company who either acts in a managerial or
technical capacity, is a sales representative or is in a skilled
or
supervisory position and with whom the Director had significant contact
during the Relevant Period;
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Exchange
Rate
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the
rate of pounds sterling to euros published in the ViewSonic Europe
Internal Exchange Rate Document;
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Group
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the
Company, its subsidiaries and any holding or parent company or subsidiary
of such holding or parent company from time to time, and ‘Group Company’
shall be construed accordingly;
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Incapacity
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any
illness or other like cause which prevents the Director from attending
to
his duties;
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Invention
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any
invention or discovery conceived or originated or made by the Director
during the course of his
employment;
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Patent
Rights
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any
patents and applications thereof relating to Inventions including
(without
prejudice to the generality of the foregoing) author certificates,
inventor certificates, improvement patents, utility certificates
and
models and certificates of addition and including any divisions,
renewals,
continuation, extensions or reissues
thereof;
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Relevant
Period
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the
period of twelve months up to and including the date of termination
of the
Director’s employment;
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Relevant
Services
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good,
products, and/or services similar to and/or competitive with those
supplied and/or marketed during the Relevant Period by the Company
to
Customers with which the Director was personally concerned and/or
for
which the Director was responsible to a material extent at any time
during
the Relevant Period;
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Relevant
Supplier
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any
supplier of the Company with which during the Relevant Period the
Director
or an Employee have dealt to a material extent in respect of Relevant
Services;
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Termination
Date
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the
date of termination of the
employment;
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ViewSonic
Europe Internal
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Exchange
Rate Document
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the
document published from time to time by ViewSonic Corporation Inc
setting
out the currency exchange rates applicable to transactions and payments
between Group Companies.
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1.2
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All
references in this Agreement to statutory provisions shall extend
to those
provisions as re-enacted or modified and to regulations thereunder
and any
statutory replacement from time to time in
force.
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1.3
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Words
and phrases defined in the Companies Acts 1985 and 1989 shall have
the
same meaning herein as therein but excluding any statutory modification
thereof not in force on the date of this
Agreement.
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1.4
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References
to clauses, schedules and recitals are reference to clauses, sub-clauses,
schedules and recitals of this Agreement unless otherwise specified.
References to the singular shall include the plural and vice versa,
and
references to the masculine gender shall include the feminine and
neuter
genders and vice versa.
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1.5
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Headings
are for convenience only and shall not affect the interpretation
or
construction of this Agreement.
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1.6
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References
to the Company shall, unless the context otherwise requires be deemed
to
include any Group Company.
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1.7
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The
Director shall obtain a Form E101 (otherwise known as a certificate
of
coverage as laid down in EU Regulation 1408/71 article 14.2b). The
Company
shall provide all reasonable assistance to the Director to enable
him to
obtain such a Form E101.
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2
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APPOINTMENT
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2.1
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The
employment of the Director commences on
the Commencement Date and shall continue unless and until terminated
by
either party giving to the other not less than six months notice
in
writing or until terminated in accordance with the termination provisions
of this Agreement provided below.
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2.2
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No
previous period of employment will count as part of the Director’s period
of continuous employment with the
Company.
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2.3
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The
Company shall be entitled in its discretion after notice shall have
been
given under the terms of this Agreement to require the Director to
remain
away from the offices of the Company or any Group Company during
all or
any part or parts of the unexpired period of the notice in which
event the
Director shall comply with any conditions laid down by the Company
during
such period. During any such period the Director’s employment will
continue as will all terms expressly provided for under this Agreement
together with any implied obligations including but not limited to
good
faith and confidentiality. The parties agree that the period of notice
is
a reasonable period of garden leave.
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3
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TITLE
AND PLACE OF WORK
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3.1
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The
Director will be employed by the Company as President and Managing
Director ViewSonic Europe and the Director will be a member of the
Board.
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3.2
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The
Director will be based at the Company’s offices in Netherlands, although
his place or residence will be in Denmark. The Company reserves the
right
to appoint the Director to other positions as may reasonably be required,
whether within the Company or any Group Company and to base the Director
permanently or temporarily at other locations in the Netherlands
or
abroad. The Company will use its reasonable endeavours to provide
the
Director with reasonable notice of any relocation temporary or
otherwise.
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3.3
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The
Director may be required to work at any of the Company’s offices or Group
Company’s. The Director will also be expected to travel throughout Europe
and overseas in the performance of his duties for such periods as
the
Company may reasonably require. The Director will be expected to
work for
at least one day in every week from his home in
Denmark.
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4
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DUTIES
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4.1
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The
Director shall during his employment under this
Agreement:
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4.1.1
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perform
the duties and exercise the powers which the Board may from time
to time
properly assign to him in his capacity as Managing Director in
connection with the business of the Company, including undertaking
duties
on the Board of the Company and the Group as required from time to
time by
the Board; and
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4.1.2
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do
all in his power to promote develop and extend the business of the
Company
and the Group and at all times and in all respects conform to and
comply
with the proper and reasonable directions and regulations of the
Board.
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4.1.3
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in
the absence of any specific directions from the Board (but subject
always
to the memorandum and articles of association of the Company) have
the
general control and responsibility for the management of the business
of
the Company; and
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4.1.4
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devote
the whole of his time, attention and ability to the duties of his
employment with the Company; and
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4.1.5
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at
all times keep the Company promptly and fully informed (in writing
if so
requested) of his conduct of the business or affairs of the Company
and
provide such explanations as the Company may require;
and
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4.1.6
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work
and faithfully serve the Company to the best of the Director’s ability and
use his best endeavours to promote the interests of the Company;
and
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4.1.7
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not
to make any untrue or disparaging statements relating to the Group;
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4.2
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The
Director’s normal duties are set out in the attached Job Description.
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4.3
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The
Director will (without further remuneration) if and for so long as
the
Company requires and for so long as the Director remains employed
by the
Company:
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4.3.1
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carry
out duties on behalf of any Group
Company
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4.3.2
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act
as an officer of any Group Company or hold any other employment or
office
as nominee or representative of the
Company;
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4.3.3
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carry
out such duties and the duties attendant on any such employment as
if they
were duties to be performed by him on behalf of the
Company.
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4.4
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For
the avoidance of doubt, unless specifically authorised in writing,
the
Director shall not be entitled to and is specifically prohibited
from
entering into on behalf of the Company any binding contracts or
arrangements involving or relating to the Company when in
Denmark.
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5
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TIME
AND ATTENTION
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5.1
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During
the
continuance of his employment under this Agreement the Director shall
unless prevented by Incapacity devote his whole time and attention
to the
business of the Company and shall not without the prior written consent
of
the Board:
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5.1.1
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engage
in any other business; or
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5.1.2
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be
concerned or interested in any other business of a similar nature
to or
competitive with that carried on by the Company or any of its Group
Companies or which is a supplier or customer of the Company or of
its
Group Companies
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PROVIDED
that nothing in this clause shall preclude the Director from holding or being
otherwise interested in any shares or other securities of any company which
are
for the time being quoted on any recognised stock exchange (or in respect of
which dealing takes place in the unlisted securities market of The Stock
Exchange) so long as the interest of the Director in such shares or other
securities does not extend to more than 2% of the total amount of such shares
or
securities.
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6
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INTELLECTUAL
PROPERTY RIGHTS
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6.1
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Forthwith
following the conception, origination or making of an Invention by
the
Director during the course of his employment, the Director shall
disclose
full details of such Invention to the Company. Further, forthwith
following the origination or development of any Confidential Information
during the course of his employment, the Director shall disclose
and make
available such Confidential Information to the
Company.
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6.2
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The
Company shall, in its sole discretion, be entitled to apply for Patent
Rights in respect of any Invention conceived, originated or made
by the
Director and shall be responsible for the maintenance and renewal
of the
Patent Rights.
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6.3
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The
Director agrees to assign to the Company all rights, title and interest
in
and to any Inventions or Confidential Information made, originated
or
developed during the course of their employment together with any
other
intellectual property rights arising out of the course of his employment
and further agrees to assist the Company in connection with any
application for Patent Rights and to do all such acts and things
as the
Company’s legal advisers may advise are necessary or desirable in
connection with any such assignment or assistance. The Director
irrevocably appoints the Company to be his attorney or agent in his
name
and on his behalf to do all such acts and things and to sign all
such
deeds and documents as may be necessary in order to give the Company
the
full benefit of the provisions of this Agreement and, in particular
but
without limitation of this clause, the Director agrees that, with
respect
to any third party, a certificate signed by any duly authorised officer
of
the Company that any act or thing or deed or document falls within
the
authority hereby conferred shall be conclusive evidence that this
is the
case.
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6.4
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The
Director assigns to the Company by way of future assignment of copyright
the copyright subsisting in the Copyright Works and in the documents
originated by the Director for all the classes of act which by virtue
of
the Copyright Designs and Patents ▇▇▇ ▇▇▇▇ the owner of the copyright
has
the exclusive right to do throughout the world and for the whole
period
for which copyright is to subsist.
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6.5
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The
Director warrants that any Inventions, Confidential Information,
Copyright
Works or Documents conceived, originated, made or developed by the
Director will not infringe any intellectual property rights of which
a
third party is the proprietor including, in particular but without
limitation, any patents, copyrights, registered designs or rights
of
confidence. The Director agrees to indemnify the Company against
any and
all liability, loss, damage, costs and expenses which the Company
or a
third party may incur or suffer whether direct or consequential (including
but without limitation any economic loss or other loss of profits,
business or goodwill) as a result of any dispute or contractual,
tortious
or other claims or proceedings brought against the Company by a third
party alleging infringement of its intellectual property rights by
reason
of the use or exploitation of any Invention, Confidential Information,
Copyright Works or Documents conceived, originated, made or developed
by
the Director or any of its personnel PROVIDED ALWAYS
that:
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6.5.1
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the
Company shall forthwith give written notice to the Director of any
claims
or proceedings following receipt of
them;
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6.5.2
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the
Company shall make no admission of liability and must give the Director
sole authority to defend or settle the claims or proceedings at the
Director’s cost and expense;
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6.5.3
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the
Company must give the Director all reasonable assistance in connection
with the claims or proceedings at the Director’s cost and
expense;
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6.5.4
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in
addition to the aforesaid indemnity, where an injunction restraining
use
or exploitation by the Company of any Invention Patent Rights Confidential
Information Copyright Works or Documents is, in the opinion of the
Company’s legal advisers, likely to be granted by the Court to the third
party, the Director shall do all such acts and things either to render
them non-infringing without affecting any of the Director’s other duties
and obligations under this Agreement or shall obtain a licence from
the
third party granting the Company the right to continue using
them.
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7
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CONFIDENTIAL
INFORMATION / COMPANY
DOCUMENTS
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7.1
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The
Director shall neither during the employment (except in the proper
performance of its duties) nor at any time after the termination
of his
employment:-
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7.1.1
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divulge
or communicate to any person, company, business entity or other
organisation; or
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7.1.2
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use
for his own purpose or for any purposes other than those of the
Company;
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7.1.3
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through
any failure to exercise due care and diligence cause any unauthorised
disclosure of
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any
trade
secret or Confidential Information relating to the Company; or
PROVIDED
THAT these restrictions shall cease to apply to any information which shall
become available to the public generally otherwise than through the default
of
the Director.
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7.2
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All
notes, memoranda, records, lists of customers and suppliers and employees,
correspondence, documents, computer and other discs and tapes, data
listings, codes, designs and drawings and other documents and material
whatsoever (whether made or created by the Director or otherwise)
relating
to the business of the Company (and any copies of the same)
-
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7.2.1
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shall
be and remain the property of the Company;
and
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7.2.2
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shall
be handed over by the Director to the Company on demand and in any
event
on the termination of the
employment.
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7.3
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The
Director may not at any time during or after the termination of his
employment make, disclose or publish any untrue, disparaging or misleading
remarks about the Company, its customers, suppliers or employees
or any of
the Company’s associated companies or their customers, suppliers or
employees.
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7.4
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All
enquiries from the press should be directed towards the ViewSonic
Corporation Marketing Department. The Director should assume that
anything
he says to the press could be published and therefore, he should
never
have dealings with the press ‘off the record’. Failure to observe this
rule may result in disciplinary action being taken by the
Company.
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7.5
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The
provisions in this clause will also apply as if references to any
associated company were substituted for references to the
Company.
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8
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HOURS
OF WORK
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8.1
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The
Director’s normal hours of work will be from 9 am to 5pm Monday to Friday
(including a half hour lunch break) or such other hours as are deemed
necessary to ensure the discharge of the Director’s duties under the terms
of this employment. The Director may be required to work over and
above
the number of hours specified in this clause without additional
remuneration so as to meet the needs of the
business.
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9
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REMUNERATION
AND DISCRETIONARY BONUS
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9.1
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The
Director shall be paid for his services to the Company with effect
from
the revision date to the Directors Service Agreement a basic salary
at a
rate of €7,210
gross per calendar month in arrears. This salary will be paid in
euros,
from which the Company will make statutory and voluntary deductions,
and
make payment of such net sum in euros by bank transfer on or about
the
25th
day of each calendar month (or such higher rate as may from time
to time
be agreed).
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9.2
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For
such period as the Director may hold a Form E101 (as referred to
in clause
1.7), the Company shall pay to the Director sums saved by the Company
in
respect of employer’s United Kingdom National Insurance contributions.
This salary will be converted (if necessary) into sterling based
on the
Applicable Exchange Rate, from which the Company will make statutory
and
voluntary deductions, convert the net sum back into euros based on
the
Applicable Exchange Rate and make payment of such net sum in euros
by bank
transfer on or about the 25th
day of each calendar month.
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9.3
|
The
Director shall also be paid an allowance with effect from the revision
date to the Directors Service Agreement at a rate of €583.33
gross per
calendar month in arrears in respect of personal travel and accommodation
expenses (which does not form part of pensionable pay). The Company
will
make statutory and voluntary deductions, and make payment of such
net sum
in euros by bank transfer on or about the 25th
day of each calendar month (or such higher rate as may from time
to time
be agreed).
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9.4
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Rates
of pay are reviewed in 1 April each year without any obligation to
increase the same. The basic salary shall be deemed to include any
fees
receivable by the Director in his position as a director of the
Company.
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9.5
|
The
Director shall be entitled to receive an on-target commission of
€42,000
per annum (in accordance with the commission accelerator schedule
in force
at the time subject to achieving performance targets), details of
which
will be supplied separately and which may be reviewed on a quarterly
basis. This commission will either be converted into sterling based
on the
Applicable Exchange Rate, from which the Company will make statutory
and
voluntary deductions, convert the net sum back into euros based on
the
Applicable Exchange Rate and make payment of such net sum in euros
by two
half-yearly instalments in January and July in arrears by bank transfer
on
or about the 25th
day of those months. The Director may alternatively be paid the commission
by a Group Company. Your entitlement to commission will cease on
the date
of termination and your accrued entitlement for the period up to
the date
of termination may be paid after the date of termination as provided
separately. No commission is payable in respect of any period after
the
date of termination.
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9.6
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No
payments are made for overtime. For the purposes of the Working Time
Regulations 1998 (as amended), the Director is considered a managing
executive who can determine the duration of his working time.
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9.7
|
For
the avoidance of doubt, the Director will be liable to and personally
responsible for all UK, Danish or other taxes and national insurance
contributions (or equivalent) assessed as payable in respects of
all sums
received from the Company during this employment. The Director shall
also
be personally responsible for any professional fees incurred in this
regard.
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9.8
|
Also
for the avoidance of doubt, 80% of remuneration received by the Director
from the Company during this employment shall relate to duties performed
in the United Kingdom. The remaining 20% of remuneration received
shall
relate to duties performed in Denmark in accordance with Clause
3.3.
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10
|
DEDUCTION
FROM WAGES
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|
10.1
|
The
Company reserves the right at any time during, or in any event upon
termination, to deduct from the Director’s salary and/or any commission
payment and/or any other monies due to the Director, an amount equivalent
to any of the following:
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10.1.1
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any
overpayment of salary, bonus, commission, remuneration or other payment
made to the Director during the course of this
employment;
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10.1.2
|
the
amount of any expenses claimed by the Director and paid but subsequently
disallowed by the Company;
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10.1.3
|
the
outstanding amount of any loan or advance made by the Company to
the
Director; and
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10.1.4
|
any
cost of repairing any damage to or loss of property of, any fines
or
charges imposed upon or any other loss sustained by the Company or
any
third party, caused by the Director’s breach of contract or breach of the
Company’s rules or as a result of the Director’s negligence or
dishonesty.
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11
|
PENSION
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|
11.1
|
The
Company will make a monthly contribution of 10% of the Director’s basic
monthly salary into a personal pension scheme of his choice, provided
that
such pension scheme is approved by the United Kingdom Inland Revenue
or
Denmark Inland Revenue. No contracting out certificate under the
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ is in force.
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12
|
EXPENSES
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12.1
|
The
Company will reimburse the Director for all travelling, hotel,
entertainment and other expenses (in euros and in accordance with
the
Applicable Exchange Rate where applicable) reasonably incurred by
him in
the proper performance of his duties subject to the Director complying
with such guide-lines or regulations issued by the Company from time
to
time in this respect and to the production to the Company of such
vouchers
or other evidence of actual payment of the expenses as the Company
may
reasonably require.
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12.2
|
The
Director will use any Company credit or chargecard only for the expenses
reimbursable under Clause 12.1 above, and will return it to the Company
forthwith upon request or on the termination of his
employment.
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12.3
|
The
Company will pay (in euros and in accordance with the Applicable
Exchange
Rate where applicable) the costs of telephone and broadband rental
in
respect of the Director’s home telephone and internet access respectively,
together with the cost of all calls made in performing his duties
under
this Agreement, upon receipt of a copy of the relevant telephone
or other
▇▇▇▇.
|
|
12.4
|
Any
benefits provided by the Company to the Director or the Directors
family
which are not expressly referred to in this Agreement are ex gratia
and
are at the entire discretion of the Company and do not form part
of the
Director's terms of employment.
|
|
13
|
DEBTS
TO THE COMPANY
|
|
13.1
|
If
at any time money is owed and payable by the Director to the Company,
whether under this Agreement or otherwise, it is agreed that the
Company
may deduct the sum or sums from time to time owed to it from any
payment
due to the Director from the Company, howsoever arising.
|
|
14
|
VEHICLES
|
|
14.1
|
The
Director shall receive a car allowance of €805 gross per calendar month in
arrears. This allowance will be converted into sterling based on
the
Applicable Exchange Rate, from which the Company will make statutory
and
voluntary deductions, convert the net sum back into euros based on
the
Applicable Exchange Rate and make payment of such net sum in euros
by bank
transfer on or about the 25th
day of each calendar month (or such higher car allowance as may from
time
to time be agreed). The Company reserves the right to replace the
car
allowance with a leased company
car.
|
|
14.2
|
In
the event that the car allowance is replaced with a leased company
car
(“the Vehicle”), the Company will provide the Director with the Vehicle
(within an annual leasing allowance of the sterling equivalent of
€27,600
in accordance with the Applicable Exchange Rate) for use for private
and
business purposes in accordance with the Company’s car policy as it may
vary from time to time.
|
|
14.3
|
The
Vehicle will be of a type determined by the Company (BMW 525 saloon
manual
or equivalent Audi, Saab or Jaguar model) and may be changed at such
intervals as it may determine. The Company may in its discretion
withdraw
the use of the Vehicle from the Director at any time without giving
a
reason or paying compensation, in which case the Director will be
entitled
to receive the car allowance referred to in this
clause.
|
|
14.4
|
The
Company will be responsible for all running costs incurred in respect
of
the Vehicle, including petrol for private and business mileage in
respect
of which the Company may provide the Director with a fuel
card.
|
|
14.5
|
The
Director will maintain the Vehicle in good running order and in a
clean
and tidy condition. The Director shall ensure that the Vehicle is
checked
(including oil, water, battery and tyres) before each journey and
any
faults are recorded in the appropriate log and appropriate action
taken.
The Director shall ensure that the Vehicle is regularly serviced
bearing
in mind that at least seven days’ notice is required.
|
|
14.6
|
The
Director shall keep such records relating to the Vehicle’s use as are
necessary to satisfy any queries which may be raised by the Inland
Revenue
or other relevant taxation authorities. The Director will also be
wholly
responsible for the payment of any taxes assessed in respect of the
Director’s use of the Vehicle.
|
|
14.7
|
The
Director
will return, at his own expense and without the need for any prior
request
by the Company, the Vehicle and the keys to the head office of the
Company
immediately following termination of his employment or at any other
time
if so requested by the Company.
|
|
14.8
|
The
Director shall not cause anything to be done to the Vehicle, either
directly or indirectly, which might invalidate any warranty in force
or
damage the Vehicle itself.
|
|
14.9
|
The
Director shall be liable for any fine or penalty charge imposed on
him and
shall reimburse the Company in respect thereof should such sum be
paid by
the Company on the Director’s
behalf.
|
|
14.10
|
The
Director will immediately inform the Company
if:-
|
|
14.10.1
|
he
is prosecuted or is to be prosecuted for any road traffic offence
in the
United Kingdom;
|
|
14.10.2
|
his
driving licence is endorsed; or
|
|
14.10.3
|
he
is disqualified from holding a driving licence in the United
Kingdom.
|
|
14.11
|
The
Director will on request from the Company produce his driving licence(s)
for inspection.
If
the Director is required to use his own vehicle for Company business,
he
is required to ensure that it is fully insured at all times and that
such
insurance will cover any equipment or other company property carried
in
the vehicle. The Director may be required to produce proof of cover
on
request.
|
|
14.12
|
The
Director must ensure that he uses mobile phones responsibly and in
accordance with legal requirements, irrespective of whether or not
the
Company has supplied him with the mobile phone or the mobile phone
is his
personal property.
For
the avoidance of doubt, the Director shall not use a hand-held mobile
phone whilst driving.
|
|
15
|
HOLIDAYS
|
|
15.1
|
The
Director is entitled to 25 working days paid holiday in each holiday
year
in addition to any statutory public holidays granted in England and
Wales.
|
|
15.2
|
The
holiday will be taken at dates agreed in advance with the Board of
the
Company. Whilst every endeavour will be made to co-operate with fixing
the
dates of holiday, such dates will remain in the ultimate discretion
of the
Company.
|
|
15.3
|
Holidays
must be taken in the year of entitlement and may not be carried forward
to
the following year except with prior agreement of the Board of the
Company. The holiday year runs concurrently with the calendar year.
|
|
15.4
|
Upon
termination of this employment the Director will be entitled to pay
in
lieu of any unused holiday entitlement or be required to pay to the
Company pay received for holiday taken in excess of holiday entitlement.
Any sums so due may be deducted from any money owing to the Director.
Holiday pay will be paid at the net basic
rate.
|
|
15.5
|
The
Company reserves the right to require the Director to take any unused
holiday during the notice period, even if booked to be taken after
the end
of the notice period. For the purpose of calculating any holiday
pay due
to the Director or owed by the Director to the Company one day’s pay shall
be the basic annual pay divided by
260.
|
|
16
|
COMPUTERS
|
|
16.1
|
The
Director will be authorised to gain access to certain computer systems,
programs and data. He must use all computer systems in a responsible
manner and with due regard to any risks relating to such use In particular
but without prejudice to the generality of the foregoing the Director
should have due regard to risks relating
to:-
|
|
16.1.1
|
loading
any program into any computer;
|
|
16.1.2
|
electronic
data transferor;
|
|
16.1.3
|
loading
any disks or CD Roms;
|
|
16.1.4
|
downloading
of any files from the internet;
|
|
16.1.5
|
use
of the internet;
|
|
16.1.6
|
connection
of any new hardware to any of the Company’s
systems.
|
|
16.1.7
|
using
any Company equipment to visit any inappropriate internet
site.
|
|
16.2
|
The
Director will be responsible for any action taken against the Company
for
breaches of copyright or otherwise resulting from the inappropriate
use by
the Director of any computer equipment of the
Company.
|
|
16.3
|
Breach
of obligations under this Clause 16 in any way that has an adverse
effect
on the Company renders the Director liable to summary
dismissal.
|
|
16.4
|
The
Company reserves the right to monitor on a regular basis the Director’s
use of its computer and/or telecommunications systems, including
phone
calls, facsimile, e-mails and use of the Internet in order to ensure
compliance with the provisions of this
clause.
|
|
17
|
ILLNESS,
MEDICAL MATTERS AND
INSURANCES
|
|
17.1
|
In
the event of the Director’s Incapacity due to sickness or
injury
or
for any other reason they are unable to attend work, the Director
should
contact another director of the Company as early as possible (and
in any
event within three hours of the time the Director should have started
work) on the first day of absence and each day thereafter, with an
estimate of how long the Director will be away from work. If the
Director
cannot notify the Company himself he should arrange for someone else
to do
it for him. At this time full reasons must be given of the nature
of any
sickness or injury. Failure to notify the Company without good reason
will
amount to unauthorised absence and may lead to disciplinary action.
|
|
17.2
|
If
the Director is absent for one days or more, immediately upon returning
to
work the Director shall complete a self-certification form, as evidence
of
their Incapacity, in respect of each day of
absence.
|
|
17.3
|
If
the Director is absent for seven days or more, the Director must
on the
eighth day of absence provide the Company with a medical certificate
from
a General Practitioner stating the reason for absence and provide
subsequent certificates to cover any subsequent periods of
absence.
|
|
17.4
|
In
the event that the notification requirements referred to in Clauses
17.1
to 17.3 are complied with, by the Director, he shall be entitled
to
receive his full net salary and benefits for the first three months
of
absence. The Director will not be entitled to any further payments
following the expiry of the first three months of continued absence.
The
Director will not be entitled to payments under this clause in excess
of
three months net salary and benefits in any 12 month
period.
|
|
17.5
|
Subject
to the rules of Statutory Sick Pay, all other pay for any period
when the
Director is unable to work through Incapacity will be at the discretion
of
the Company.
|
|
17.6
|
From
time to time the Company may reasonably require the Director to undergo
a
medical examination by a medical practitioner appointed by the Company.
The costs of any such medical examination will be borne by the Company.
The Director hereby consents to any report arising out of such examination
being given to the Company by that medical
practitioner.
|
|
17.7
|
In
the event that the Director shall unreasonably refuse to undergo
any such
medical examination, the Company may withhold all or any part of
the
salary and other entitlements of the
Director.
|
|
17.8
|
In
the event that a medical practitioner appointed by the Company requires
details of the Director’s medical history or access to any medical report
prepared for them then the Director will (subject always to the Director’s
rights under the Access to Medical Records Act 1988) not unreasonably
refuse their consent to a request that a medical practitioner appointed
by
the Company makes to any medical practitioner of the Directors for
such
details or access. For the purposes of the Access to Medical Records
▇▇▇
▇▇▇▇ the Director hereby authorise any medical practitioner appointed
by
the Company to make any such request to any medical practitioner
of the
Director’s for such details or
access.
|
|
17.9
|
The
Company will take out and maintain insurance cover on behalf of the
Director for life insurance with an insurance company and the details
and
type of cover will be at the discretion of the Company. These details
are
available from the Human Resources Department on
request.
|
|
17.10
|
If
the Director’s absence due to sickness or injury is occasioned by the
actionable negligence of a third party in respect of which damages
are
recoverable, then all sums paid by the Company shall constitute loans
to
the Director who shall:-
|
|
17.10.1
|
forthwith
notify the Company of all relevant circumstances and of any claim,
compromise, settlement or judgment made or awarded in connection
therewith;
|
|
17.10.2
|
if
the Company so requires, refund to the Company such sum as the Company
may
determine not exceeding the lesser of:-
|
|
17.10.2.1
|
the
amount of damages recovered by the Director under such compromise,
settlement or judgment; or
|
|
17.10.2.2
|
the
sums advanced to the Director in respect of the period of
incapacity.
|
|
17.11
|
The
Company shall be entitled to retain sensitive personal data relating
to
the Director’s health for any or all of the purposes set out in this
clause.
|
|
18
|
TERMINATION
OF DIRECTORSHIP
|
|
18.1
|
The
employment of the Director under this Agreement shall terminate
automatically in the event of his ceasing to be a director of the
Company
and in that event the Director shall have no claim for damages against
the
Company unless he shall cease to be a Director of the Company by
virtue of
a resolution passed by the members of the Company in general meeting,
and
at the time of such removal the Company shall not be otherwise entitled
to
terminate his employment under this
Agreement.
|
|
19
|
NOTICE
PROVISIONS, DISMISSAL AND
SUSPENSION
|
|
19.1
|
This
Agreement shall be subject to termination by:
|
|
19.1.1
|
either
party upon giving notice in writing to the other party in accordance
with
Clause 2.1 above;
|
|
19.1.2
|
the
Company giving not less than three months’ notice in writing at any time
when the Director is or has been incapacitated by ill health or accident
(incurred otherwise than in the due performance of his duties hereunder)
from performing his duties hereunder and shall have been so incapacitated
for a total period of one hundred and eighty days or more in the
preceding
twelve months;
|
|
19.1.3
|
the
Company giving summary notice in writing to the Director if the Director
-
|
|
19.1.3.1
|
commits
any material or persistent breaches of this
Agreement;
|
|
19.1.3.2
|
mismanages
the business of the Company or any of the Group Company so as to
cause the
Company financial loss;
|
|
19.1.3.3
|
is
guilty of conduct tending to bring himself or the Company or any
of the
Group Company into disrepute;
|
|
19.1.3.4
|
becomes
of unsound mind or commits an act of bankruptcy or compounds with
his
creditors generally;
|
|
19.1.3.5
|
is
disqualified from holding the office of
director
|
|
19.2
|
The
Company may at any time and for whatever reason suspend the Director
from
his employment hereunder on full salary for such period of time as
is
necessary for the Company to carry out any necessary investigations
to
consider the Director’s future employment with the
Company.
|
|
19.3
|
Should
the Director fail to resign as a Director, if so requested to do
so by the
Company, the Director hereby irrevocably authorises the Company to
nominate a person to sign the relevant resignation documentation
on their
behalf.
|
|
19.4
|
The
Company
may, at its option, pay salary in lieu of notice but nothing in these
terms and conditions of employment shall prevent the Company from
terminating the Director’s employment without notice or payment in lieu of
notice in appropriate circumstances. Where a payment in lieu of notice
is
made, the Director will be paid his basic salary only and his entitlement
to any benefits or payment for any benefits shall cease on his termination
date
|
|
19.5
|
This
employment will automatically terminate without notice at the end
of the
month in which the Director attains the age of 65. After the Director
reach this age, any further employment and the terms of such employment
will be totally at the discretion of the
Company.
|
|
19.6
|
The
Director will be subject to a three month probationary period, at
the end
of which the Director’s performance will be
reviewed.
|
|
20
|
POSITION
ON TERMINATION
|
|
20.1
|
Upon
the termination by whatever means of their employment under this
Agreement
the Director shall at the request of the Company immediately resign
from
office as a director of the Company and from such offices held by
him in
any Group Company as may be so requested without claim for compensation
and in the event of his failure so to do, the Company is hereby
irrevocably authorised to appoint some person in his name and on
his
behalf to sign and deliver such resignation or resignations to the
Company
and to each of the Group Companies of which the Director is at the
material time a director or other
officer.
|
|
21
|
POST
TERMINATION
|
|
21.1
|
Upon
the termination of the employment (howsoever occurring) the Director
shall
immediately deliver up to the Company all correspondence documents
specifications and property belonging to the Company or any Group
Company
which may be in his possession or under his control or in the possession
or control of his personal
representatives.
|
|
21.2
|
After
the termination of his employment, the Director shall not represent
himself as being in any way connected with the Company or any Group
Company.
|
|
21.3
|
The
Director covenants with the Company that he will not, without the
prior
written consent of the Company:
|
|
21.3.1
|
for
a period of six months after the termination of the Director’s employment,
either alone or jointly with or as a director, manager, agent, consultant,
partner, or employee of any person, firm, company or other organisation
directly or indirectly carry on or be engaged in any activity or
business
which is engaged or concerned with the supply of Relevant
Services;
|
|
21.3.2
|
for
a period of nine months after the termination of the Director’s
employment, canvass, solicit, approach, deal with, entice away or
cause to
canvassed, solicited, approached, dealt with or enticed away any
Customer
for business in respect of Relevant
Services;
|
|
21.3.3
|
for
a period of nine months after the termination of the Director’s
employment, interfere or seek to interfere with the continuation
of
supplies to the Company from any Relevant
Supplier;
|
|
21.3.4
|
for
a period of nine months after the termination of the Director’s
employment, solicit, interfere with or attempt to entice away any
Employee.
|
|
21.4
|
The
Director acknowledges that:
|
|
21.4.1
|
each
of the foregoing sub-clauses constitutes an entirely separate and
independent restriction on him;
|
|
21.4.2
|
the
duration, extent and application of each of the restrictions are
no
greater than is necessary for the protection of the Company’s
interests;
|
|
21.4.3
|
the
duration of each of the restrictions shall be reduced by any period
of
time during which the Company requires the Director not to attend
his
place of work during any period of notice of termination.
|
|
21.4.4
|
the
restrictions contained in this clause are considered to be reasonable
but
if any of the restrictions are found to be void in circumstances
where it
would be valid if some part of it were deleted it is agreed that
the restrictions
shall apply with such deletion as is necessary to make it
valid.
|
|
22
|
NO
OBLIGATION TO THIRD
PARTIES
|
|
22.1
|
The
Director undertakes that he is at liberty to take up employment with
the
Company and perform all the obligations set out in this Agreement
without
limitation or breach of any obligations or duties he has to a third
party.
|
|
23
|
INDEMNITIES
AND DIRECTORS AND OFFICERS’
INSURANCE
|
|
23.1
|
The
Director will indemnify the Company in respect of any liability incurred
by the Company as a direct consequence of the Directors negligence,
breach
of contract, breach of duty or breach of trust in relation to the
affairs
of the Company.
|
|
23.2
|
The
Company will at its discretion take out and maintain insurance cover
on
behalf of the Director for Directors’ and Officers’ Insurance and details
are available on request from the Human Resources
Department.
|
|
24
|
DISCIPLINARY
PROCEDURE
|
|
24.1
|
The
procedure laid down is in accordance with the procedure annexed hereto
at
Schedule A to this Agreement, which is not to be regarded as contractually
binding save as far as required under legislation in force from time
to
time.
|
|
24.2
|
The
Director shall refer any grievance relating to any disciplinary decision
to the Board whose decision shall be
final.
|
|
25
|
GRIEVANCE
PROCEDURE
|
|
25.1
|
The
Director shall refer any grievance relating to his employment hereunder
or
relating to any disciplinary decision to the Board whose decision
shall be
final.
|
|
26
|
COLLECTIVE
AGREEMENTS
|
|
26.1
|
This
employment is unaffected by the terms of any collective
agreement.
|
|
27
|
GENERAL
|
|
27.1
|
This
Agreement (together with the Company’s Employee Handbook) embodies and
sets forth the entire agreement and understanding of the parties
and
supersedes all prior oral or written agreements understandings or
arrangements relating to the subject matter of this Agreement. Neither
party shall be entitled to rely on any agreement, understanding or
arrangement, which is not expressly set forth in this Agreement or
Employee Handbook.
|
|
27.2
|
The
Company reserves the right to vary the terms and conditions of this
Agreement which will be notified to the Director in writing within
one
month of such variation.
|
|
27.3
|
In
the event of any conflict between the terms set out in this Agreement
and
the Company’s Employee Handbook, the terms of this Agreement shall
prevail.
|
|
27.4
|
This
Agreement shall not be amended, modified, varied or supplemented
except in
writing signed by duly authorised representatives of the
parties.
|
|
27.5
|
No
failure or delay on the part of either party hereto to exercise any
right
or remedy under this Agreement shall be construed or operate as a
waiver
thereof nor shall any single or partial exercise of any right or
remedy as
the case may be. The rights and remedies provided in this Agreement
are
cumulative and are not exclusive of any rights or remedies provided
by
law.
|
|
28
|
NOTICES
|
|
28.1
|
Any
notice to be given hereunder shall be in writing and be sufficiently
served in the case of the Director by being delivered either personally
to
him or sent by registered post addressed to him at his usual or last
known
place of abode or in the case of the Company by being delivered at
or sent
by registered post or recorded delivery addressed to its registered
office
and any such notice if so posted shall be deemed to be served on
the
second day following that on which it was
posted.
|
|
29
|
STATEMENT
OF EMPLOYMENT PARTICULARS
|
|
29.1
|
The
Company and the Director agree that this Agreement constitutes a
Statement
of Employment Particulars in accordance with Section 1 Employment
Rights
▇▇▇ ▇▇▇▇.
|
|
30
|
LAW
AND JURISDICTION
|
|
30.1
|
The
terms of this Agreement shall be governed by the Laws of England
and Wales
and the Courts of England and Wales shall have exclusive jurisdiction
in
all matters relating thereto.
|
SCHEDULE
A
DISCIPLINARY
PROCEDURE
The
disciplinary procedure provides for warnings to be given for failure to meet
the
Company’s standards of job performance conduct (whether during working hours or
not) and attendance or for breach of any of the terms and conditions of
employment. The Director should be familiar with its provisions and aware that
the procedure is not to be regarded as contractually binding upon either the
Company or the Director
|
1
|
In
the first instance the Board will establish the facts surrounding
the
complaint (if necessary) taking into account the statements of any
available witnesses.
|
|
2
|
If
the Board considers that it is not necessary to resort to the formal
warning procedure, the Board will discuss the matter with the Director
suggesting areas for improvements The discussion will in so far as
is
possible be in private and the Director will be informed that no
formal
disciplinary action is being taken.
|
|
3
|
If
the Board considers that it is necessary to invoke the formal warning
procedure, the Board will inform the Director in writing giving detail
as
to the proposed venue date and time of the meeting together with
detail as
to the matter to be discussed. The following procedure will then
apply but
depending upon the seriousness of the offence may be invoked at any
level
including summary dismissal.
|
|
3.1
|
In
the case of minor offences the Director will be given a formal oral
warning in the event that the Board deems fit. He will be advised
that the
warning constitutes the first formal stage of the disciplinary procedure
and that a note will be placed on his personal file and will remain
on
file for the period of 6 months. The nature of the offence and the
likely
consequences of further offences or a failure to improve will be
explained
to him.
|
|
3.2
|
In
the case of serious offences or a repetition of earlier minor offences
the
Director will be given a written warning in the event that the Board
deems
fit which will remain on file for the period of 12 months. The warning
will set out the precise nature of the offence the likely consequences
of
further offences and specifying if appropriate the improvement required
and over what period.
|
|
3.3
|
In
the case of a further repetition of earlier offences or if the Director
still fails to improve or if the offence whilst falling short of
gross
misconduct is serious enough to warrant only one written warning
the
Director will receive in the event that the Board deems fit one written
warning which will remain on file for the period of 9 months. The
warning
will set out the precise nature of the offence containing a statement
that
any recurrence will lead to dismissal or whatever other penalty is
considered appropriate and specifying if appropriate the improvement
required and over what period.
|
|
3.4
|
In
the case of gross misconduct or if all previous stages of the warning
procedure have been exhausted the Director will normally be dismissed
but
only after consideration of other possible disciplinary action including
(but without limitation) demotion or transfer, loss of seniority
or salary
increment suspension with or without
pay.
|
|
4
|
Where
the Director is accused of an act of gross misconduct, he may be
suspended
from work for such period as the Board decides on full pay pending
outcome
of the investigation into the alleged
offence.
|
|
5
|
In
all cases before any disciplinary action (including warnings) is
taken the
Director will be interviewed by the Board and will be informed of
the
allegations made against him. He will be given the opportunity to
state
his case and at the interview may be accompanied by a colleague or
trade
union representative of his choice. If the complaint is upheld the
Director will be informed of the disciplinary action to be taken
the stage
in the disciplinary procedure to be adopted depending upon the seriousness
of the offence and of the right to
appeal.
|
|
6
|
The
following are non-exhaustive examples of the sort of offences which
if
committed will normally lead to formal disciplinary action being
taken.
|
|
6.1
|
Minor
offences (oral warning) poor job performance involving sub-standard
work
punctuality, absenteeism or any minor breach of the Company’s
regulations.
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6.2
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Serious
offences (written warnings) negligence resulting in minor loss damage
or
injury failure to comply with specific instruction irresponsibility
in
relation to the Company’s employees activities or impropriety in relation
to the Director’s tasks for the Company whether or not within working
hours which the Company reasonably considers to be detrimental to
or
conflicting with the interests of the Company or its clients or likely
to
affect the Director’s standard of work failure to disclose any personal
interest of the employee which conflicts with any matter of a client
or
customer with which the Director is engaged or any breach of confidence
relating to the Company or its clients’ or customers’
affairs.
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6.3
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Gross
misconduct (dismissal) negligence resulting in serious loss damage
or
injury, assault or attempted assault, theft, malicious damage to
property,
wilful disregard of duties or of instructions relating to the employment,
deliberate and serious breach of confidence relating to the Company’s or
its clients’ or customers’ affairs, the use for personal ends of
confidential information obtained by the Director in the course of
his
employment, falsification of records, conduct violating common decency,
being incapable through alcohol or under the influence of drugs,
conviction on a criminal charge relevant to the Director’s employment or
misuse of the Company’s computer and telecommunications
systems.
In
serious cases dismissal will normally be without
notice.
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7
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The
Director has the right to appeal against any disciplinary decision.
The
appeal must be instituted in writing and be received by the Chairman
within 5 working days of the decision being appealed. The Appeal
Notice
must specify the Grounds of Appeal and be addressed to the Chairman.
The
Appeal will then be heard at a hearing by the Board whose decision
will be
final.
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IN
WITNESS
whereof
the hands of the parties have executed this Agreement the day and year above
written
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SIGNED
as a DEED by ▇▇▇▇▇ ▇▇▇
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)
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/s/
▇▇▇▇▇ ▇▇▇
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on
behalf of the COMPANY
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)
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in
the presence of :-
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)
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/s/
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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SIGNED
as a DEED by ▇▇▇ ▇▇▇▇▇▇
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)
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/s/
▇▇▇ ▇▇▇▇▇▇
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in
the presence of :-
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)
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/s/
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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