October 23, 2008 Nathaniel MacLeitch AMV Holding Limited Marlow Buckinghamshire, United Kingdom Re: Employment Agreement Dear Mr. MacLeitch, IT IS AGREED as follows:
October
23, 2008
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AMV
Holding Limited
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▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dear
▇▇.
▇▇▇▇▇▇▇▇▇,
I
am
writing to set out the terms of your employment with AMV Holding Limited (the
“Company”).
IT
IS AGREED
as
follows:
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1.
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JOB
TITLE, DUTIES AND CONDUCT
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1.1.
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You
are employed as a joint managing director of the Company and you
shall
serve the Company in this, or an equivalent position, and in such
other
position or positions with the Company and its subsidiaries and affiliates
consistent with your position as a joint managing director of the
Company
and shall perform such duties as the Chief Executive Officer of Twistbox
Entertainment, Inc. (the “CEO”) or the Board of Directors of Mandalay
Media, Inc. shall reasonably assign you from time to time. You shall
report directly to the CEO or such other person as the Company shall
determine from time to time.
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1.2.
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You
shall devote substantially all of your business time and attention
to the
services required of you hereunder, and shall perform such services
in a
manner consistent with the duties of your position, provided the
foregoing
shall not prevent you from (i) serving on the board of directors
of
non-profit organizations and, with the prior written approval of
the
Board, other companies, (ii) participating in charitable, civic,
educational, professional, community or industry affairs and (iii)
managing your and your family’s passive personal investments; provided
such activities in the aggregate do not interfere or conflict with
your
duties hereunder or create a potential business conflict. You shall
be
subject to the terms and conditions of any applicable policy of the
Company regarding service on behalf of any other
organization.
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1.3.
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During
the Employment, you shall not become associated with any entity,
whether
as a principal, partner, employee, director, consultant, joint venturer,
lender, investor, individual proprietor, shareholder or otherwise
(other
than as a holder of not in excess of 2% of the outstanding voting
shares
of any publicly held company), that is actively engaged or preparing
to be
actively engaged in any geographic area in any business which is
in
competition with a business conducted by the Company or any of its
subsidiaries or affiliates at the time of the alleged competition.
During
the Employment, you shall not engage in any activity or activities
preparatory to competing with the
Company.
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2.
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DATE
OF COMMENCEMENT
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Your
employment with the Company will commence as of the date hereof (the
“Commencement Date”) and shall be subject to earlier termination in accordance
with its terms.
1
No
previous employment with a previous employer counts as part of your period
of
continuous employment which commenced on the Commencement Date.
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3.
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COMPENSATION
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3.1.
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Your
base salary during the first Earn-Out Period (as defined in the Stock
Purchase Agreement, by and among Mandalay Media, Inc., ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the shareholders of the Company signatories
thereto, dated as of October 8, 2008 (the “Stock Purchase Agreement”),
which will accrue from day to day, will be at the rate of £60,000 per
annum payable monthly in arrears direct into your bank account on
or
before the last day of each calendar month. Where this falls on a
weekend
or public holiday, payment will be made on the last working day before
that day. Within ten (10) days of the beginning of the second Earn-Out
Period and the third Earn-Out Period, as applicable, you may provide
the
Company with a notice setting forth the base salary you wish to receive
for such period, which shall be no greater than £100,000 per annum. In the
event that you fail to provide the Company with such a notice within
such
ten day period, your base salary for such period shall be £60,000 per
annum. After the expiration of the Earn-Out Term (as defined in the
Stock
Purchase Agreement), your base salary will be reviewed on an annual
basis
in March of each year. There is no obligation on the Company to increase
the level of your base salary at a review. An increase awarded in
one year
will not influence or set a precedent in relation to future
years.
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3.2.
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Following
the expiration of the Earn-Out Term, you may then be eligible to
receive a
performance/merit bonus as determined by Company’s Board based upon
several factors including the profitability of the Company, your
performance and the achievement of the goals set by the Company’s Board
during each fiscal year. Any bonus paid to you is entirely discretionary
and there is no contractual entitlement to receive it nor shall it
be
deemed to become part of your contractual remuneration or salary
for
pension purposes or otherwise. In the event your employment is terminated
or you are under notice of termination prior to the payment date
(whether
such notice is given by the Company or you) you will forfeit all
and any
rights and entitlements to a bonus and will not have any rights against
the Company in respect of the loss of such entitlement. The Company
reserves in its absolute discretion the right to terminate or amend
any
bonus scheme without notice to you. Receipt of a discretionary bonus
one
year creates neither right to nor expectation of any bonus in the
next
year.
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3.3.
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You
authorise the Company at any time during your employment, or in any
event
on the termination of your employment, howsoever arising, to deduct
from
your salary and from any other sums reimbursable to you by the Company,
any monies from time to time due from you to the Company including,
but
not limited to any outstanding loans, advances, payment for excess
holiday, overpayment of wages and any other monies owed by you to
the
Company.
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3.4.
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You
shall be entitled to participate in all bonus and benefit programs
that
the Company establishes and makes available to its executive employees,
if
any, to the extent that your position, tenure, salary, age, health
and
other qualifications make you eligible to participate, including,
but not
limited to, health care plans, life insurance plans, disability insurance,
retirement plans, and all other benefit plans from time to time in
effect.
The Company shall pay for your participation in the health care plan
that
it currently has in place. The Company shall also reimburse you up
to £500 per month for the lease of an automobile to be used in
connection with your employment with the Company.
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2
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4.
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LOCATION
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Your
principal place of work at the date of this letter is ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. You may also be required to travel within the
UK
and abroad in the course of your duties from time to time at the reasonable
discretion of the Company.
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5.
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HOURS
OF WORK
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5.1.
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Your
normal hours of work are from 8:00 a.m. to 5:00 p.m. or 9.00 a.m.
to 6.00
p.m. Monday through Friday, inclusive. You are entitled to a one
(1) hour
lunch break. You may be required to work additional hours either,
as and
when requested by the Company, or when the proper performance of
your work
requires. You will not be entitled to be paid extra remuneration
for any
such additional hours worked in excess of your basic weekly
hours.
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5.2.
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You
agree that the limit in regulation 4(1), Working Time Regulations
1998
(“the Regulations”) does not apply during your employment and that if
necessary for the proper performance of your duties you will work
more
than an average of 48 hours in each seven day period (as defined
by and
calculated in accordance with the Regulations). You can withdraw
your
agreement to the terms of this clause by giving to the Company three
months’ written notice.
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6.
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HOLIDAY
ENTITLEMENT
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6.1.
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Your
annual holiday entitlement is twenty-five (25) days in the Company’s
holiday year which runs from January to December, plus Bank Holidays
in
England and Wales. Your entitlement for a part year will be pro-rated
according to your annual entitlement. You are entitled to your full
remuneration and benefits during days taken as
holiday.
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6.2.
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You
are required to give at least two weeks’ notice of a proposed holiday. No
more than 10 consecutive days’ holiday (plus weekends falling in between)
may be taken at any one time. The provisions of regulations 15(1)
to (4)
of the Regulations do not apply to your employment. Unused holiday
entitlement may not be carried over from one calendar year to the
next
without the prior written consent of the
Company.
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6.3.
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Upon
termination of employment, you will receive payment in respect of
any
days’ holiday which has accrued but has not been taken by the date your
employment terminates. A pro-rated sum will be deducted in respect
of any
days you have taken in excess of your holiday entitlement from your
last
salary payment. For these purposes a day’s pay is calculated as 1/260 of
your annual salary.
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6.4.
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During
any period of notice (whether given by the Company or by you), no
contractual holiday entitlement shall accrue, save that your entitlement
to annual leave pursuant to regulation 13 of the Regulations shall
continue to accrue during such
period.
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6.5.
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The
Company reserves the right, at its sole discretion, to require you
to take
or not to take all or part of any outstanding holiday during any
notice
period or period of Garden Leave.
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7.
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PENSION
SCHEME
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7.1.
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The
Company shall not be liable to pay or provide any pension to or for
your
benefit (without prejudice to the Company’s obligation (if any) pursuant
to the Welfare Reform and Pensions ▇▇▇ ▇▇▇▇, the Finance ▇▇▇ ▇▇▇▇
and the
Stakeholder Pension Schemes Regulations 2000 to facilitate access
to a
stakeholder pension scheme) and you are encouraged to make your own
pension arrangements.
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3
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7.2.
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The
Company has not opted to treat your employment as contracted-out
employment by reference to an occupational pension scheme and a
contracting-out certificate issued in accordance with the ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ is not in force in respect of your
employment.
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8.
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ABSENCE
AND SICKNESS
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8.1.
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Any
unauthorized absence requires you to notify the CEO (or his designated
deputy) by 10.00 a.m. on the first day of any such unauthorized absence.
If you are still off work on the third day you must contact the CEO
to
report on your progress. You must keep the CEO regularly informed
of your
absence and of the expected duration of your absence. Failure to
notify
the Company of your absence may render you subject to disciplinary
action
and may also bar you from receiving sick
pay.
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8.2.
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Absence
through sickness or injury must be covered by a medical certificate.
For
the first seven days a self-certificate form (available from Human
Resources) must be completed on your return to work and submitted
to Human
Resources For illness of more than seven days, a doctor’s certificate must
be produced on the eighth day and should be submitted regularly for
any
period of sickness thereafter. On each occasion a medical certificate
expires and you do not anticipate returning to work, you must notify
the
Head of Worldwide Sales on the first working day following the expiry
of
the medical certificate.
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8.3.
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Provided
that you comply with your obligations under this clause 8, the Company
may
at its absolute discretion make full payment of salary while you
are
absent for sickness or injury for a maximum period of thirty (30)
days in
any twelve-month period and for any subsequent such absence in the
same
calendar year you will receive such pay (if any) as the Company may
in its
sole discretion deem appropriate. The foregoing is without prejudice
to
any entitlement to statutory sick pay (“SSP”) under the Social Security
Contributions and Benefits ▇▇▇ ▇▇▇▇ (for which purpose Monday to
Friday
(inclusive) in each week shall be qualifying days). Any payment made
in
respect of a day of sickness shall count towards any entitlement
to SSP
and any other sickness or other benefit obtainable by you under any
social
security, national insurance or other legislation for the time being
in
force or any benefit received by you as a result of contributions
paid by
the Company to any health insurance scheme. Only SSP will be paid
for any
period of absence due to sickness during your probationary period
and/or
your notice period. The Company at all times reserves the right to
withhold, discontinue or request repayment of any contractual sick
pay:
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8.3.1.
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if
it is satisfied that you have misrepresented your state of health
or are
in any way abusing the sickness scheme;
or
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8.3.2.
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if
an injury from an accident at work was caused by your misconduct
at work;
or
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8.3.3.
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if
you fail to follow the Company’s absence rules;
or
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8.3.4.
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if,
in the opinion of a doctor nominated by the Company, you are well
enough
to work; or
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8.3.5.
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if
you behave in a manner likely to impede your
recovery.
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8.4.
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You
agree to be examined by a medical practitioner nominated by the Company
on
the Company’s request, the cost of which will be borne by the Company. You
shall authorise the medical practitioner carrying out the examination
to
disclose to or discuss with the Company and its advisers any matters
arising from such examination.
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9.
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PERIOD
OF NOTICE AND TERMINATION OF EMPLOYMENT
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9.1.
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You
will be required to give six (6) months notice in writing to terminate
your employment. Notwithstanding anything to the contrary set forth
herein
or in the Stock Purchase Agreement, if you terminate your employment
with
the Company under this clause 9.1 prior to the expiration of the
Earn-Out
Term, you acknowledge and agree that neither the Company nor Mandalay
Media, Inc. shall be obligated to pay you any portion of any Earn-Out
Payment (as defined in the Stock Purchase Agreement) that might otherwise
be payable for the Earn-Out Period (and any subsequent Earn-Out Periods)
in which you are not fully employed by the Company during such Earn-Out
Period.
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9.2.
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Should
the Company wish to terminate your employment prior to the second
anniversary of the Commencement Date, other than for the reasons
set out
in clause 9.4 below, you will be entitled to receive payments in
the
amount of your base salary then in effect up to the second anniversary
of
the Commencement Date, and you shall be entitled to six (6) months
notice
of such termination.
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9.3.
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The
Company shall be entitled at its sole discretion at any time to terminate
your employment forthwith without notice in accordance with this
clause
9.3 and to make a payment of basic salary to you as set forth above
in
lieu of any notice period and to deduct tax and national insurance
from
any such payment, provided that if the Company shall decide not to
make a
payment to you under this clause, you shall not be entitled to enforce
the
payment as a contractual debt or as liquidated damages and your sole
remedy will be in the form of damages in respect of any unexpired
period
of notice. Where you have received a payment in lieu of notice, you
will
not be entitled to any additional compensation in respect of holiday
which
would otherwise have accrued during your notice period. For the avoidance
of doubt, you shall be entitled to receive your pro-rata share of
any
Earn-Out Payment made by Mandalay Media, Inc. unless you terminate
your
employment with the Company pursuant to clause 9.1.
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9.4.
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Notwithstanding
the other provisions of this clause 9, your employment may be terminated
by the Company by written notice having immediate effect and without
notice or payment in lieu of notice or payment of any compensation
or
liquidated damages if you are guilty of gross misconduct or in any
way
fundamentally breach your employment contract with the Company. The
following are examples of conduct that would entitle the Company
to
terminate your employment
summarily:
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9.4.1.
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theft,
fraud, intentionally providing false or misleading information or
any act
of dishonesty;
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9.4.2.
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any
act or attempted act of violence or abusive behaviour towards people
or
property including causing deliberate damage to the Company’s
property;
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9.4.3.
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indecent
behaviour towards or harassment or bullying of fellow employees,
suppliers, customers or clients;
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9.4.4.
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incapability
through alcohol, non-prescribed drugs or other
substances,
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9.4.5.
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wilful
and persistent breach of health and safety
regulations;
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9.4.6.
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a
serious act of insubordination or wilful refusal to carry out reasonable
requests;
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9.4.7.
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serious
or persistent neglect of duties or a series of persistent breaches
of the
terms and conditions of your employment, other than a breach which
is
capable of remedy and is remedied forthwith by you at the Company’s
request to the reasonable satisfaction of the
Company;
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9.4.8.
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failure
to comply in any material respect with any policy, procedures or
rules of
any professional or regulatory body governing the business carried
out by
the Company including, without limitation, any policy in respect
of equal
opportunities and harassment, data protection and use of email and
the
internet;
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9.4.9.
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unauthorized
use of or disclosure of confidential
information;
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9.4.10.
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serious
breach of the Company’s policies, procedures or rules contained in the
Employee Handbook, which may be amended from time to
time;
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9.4.11.
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falsifying
records or expense claims;
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9.4.12.
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conviction
of a criminal offence, other than a minor offence, arising from or
related
to your work for the Company;
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9.4.13.
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conviction
of a criminal offence committed outside working hours which in the
opinion
of the Company acting reasonably adversely affects the Company’s business
or reputation, or affects your suitability for the type of work which
you
perform or affects your acceptability to other
employees;
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9.4.14.
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any
act of gross misconduct or any other act or omission (whether or
not
during or in the context of your employment) which, in the opinion
of the
Company acting reasonably, brings or is likely or calculated to bring
the
name or reputation of the Company into disrepute or to materially
prejudice the interests of the business of the
Company;
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9.4.15.
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unauthorized
signing of documentation committing the Company to any financial
obligation or exceeding your authority in any other way;
or
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9.4.16.
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misuse
of the Company’s computer system or any other Company owned
equipment.
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9.5.
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The
Company shall have the right to suspend you (subject to the continued
payment of salary and benefits) pending any investigation into any
potential dishonesty, gross misconduct or any other circumstances
which
may give rise to a right to the Company to terminate your employment
for
such period as it thinks fit.
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10.
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GARDEN
LEAVE
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10.1.
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After
notice of termination has been given by either party you may be required
by the Company in its absolute discretion not to attend at your place
of
work or other offices of the Company at any time and not to perform
any
duties for the Company or to perform only such specific duties, projects
or tasks as are expressly assigned to you by the Company, in any
case for
such period and at such place or places (including, without limitation
your home) as the Company in its absolute discretion may decide.
You will
continue to receive your full pay and contractual benefits during
any such
period. Any period of Garden Leave will not exceed the period of
notice
the Company is required to give you pursuant to clause 9.2 of this
agreement.
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10.2.
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During
any such period you shall:
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10.2.1.
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if
requested by the Company resign from any office which you may hold
in the
Company or which you hold as a nominee of the
Company;
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10.2.2.
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notify
the Company of any change of address or contact
details;
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10.2.3.
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if
requested by the Company return all of the Company’s property which is
held by you or is under your control including without limitation
all
confidential information, documents, software and copies of documents
and
software;
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10.2.4.
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if
requested by the Company, refrain from contacting employees, clients
and
professional contacts of the Company except where such employees,
clients
and professional contacts are personal friends of yours and you have
contacted them in a social
capacity;
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10.2.5.
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if
requested by the Company cease to be an authorized signatory of the
Company or hold a power of attorney for the
Company.
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10.3.
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The
Company reserves the right to require you to take holiday which is
accrued
up to the commencement of garden leave and which will accrue to the
date
your employment terminates during the period of garden leave on such
day
or days as the Company may specify. No contractual holiday entitlement
shall accrue during such period itself, save that your entitlement
to
annual leave pursuant to regulation 13 of the Regulations shall continue
to accrue during such period.
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10.4.
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During
any such period referred to in clause 10.1, the Company shall be
under no
obligation to provide any work for you and you shall continue to
be bound
by the express and implied duties of your employment including, without
limitation, by the duty of fidelity and good faith owed to the Company
and, for the avoidance of doubt but without limitation, by the provisions
of clause 18.
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10.5.
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During
any such period referred to in clause 10.1, the Company shall be
entitled
to make such reasonable announcements or statements to employees,
clients
and professional contacts of the Company and other third parties
concerning you as may be
appropriate.
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11.
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CONFIDENTIALITY
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11.1.
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You
will not (except in the proper course of your duties) either during
or
after the termination of your employment, directly or indirectly
make use
of, communicate or divulge to any person or corporate body and shall
use
your best endeavours to prevent the publication or disclosure of
secret or
confidential information including, without limitation, any trade
secrets,
customer names, customer lists, customer profiles, prospective customer
lists, mailing lists, receipts, documentation, computer programs,
drawings, designs, information regarding product development, existing
projects, marketing plans, sales plans, information relating to the
Company’s strategy, plans, or employees, manufacturing, marketing and/or
distribution systems plans, management organization information (including
data and other information relating to members of the Board and
management), operating policies or manuals, business plans, financial
records or other financial, commercial, business or technical information
relating to the Company or any of its subsidiaries or affiliates
or
information designated as confidential or proprietary that the Company
or
any of its subsidiaries or affiliates may receive belonging to suppliers,
customers or others who do business with the Company or any of its
subsidiaries or affiliates (collectively, “Confidential Information”)
unless such Confidential Information has been previously disclosed
to the
public by the Company or has otherwise become available to the public
(other than by reason of Employee’s breach of this clause 11.1).
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11.2.
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If
your job involves the handling of personal data on employees, it
is a
further condition that you must not reveal any of it to others, whether
employees or not, without proper authorisation from the
CEO.
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11.3.
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A
breach of the above may result in disciplinary
action.
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11.4.
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For
the avoidance of doubt, the termination of this contract or variation
of
any of its terms or conditions for any reason shall not affect the
obligations of confidentiality set out above, except that they shall
cease
to apply to any information or knowledge which may subsequently come
into
the public domain other than by way of unauthorised disclosure in
breach
of the above obligations.
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11.5.
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All
programmes and information about the Company’s affairs held on a computer
owned by you shall be deleted on the termination of your employment
and if
requested by the Company you will make the computer available for
inspection by the Company to ensure that this has been effectively
carried
out.
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12.
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RETURN
OF COMPANY’S PROPERTY AND REPAYMENT OF SUMS DUE TO THE
COMPANY
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On
the
termination of your employment for whatever reason, or at any time on the
request of the Company, you must immediately return to the Company in accordance
with its instructions all equipment, Confidential Information, correspondence,
records plans, statistics, specifications, magnetic disks, tapes or other
software storage media, models, notes, papers, reports and other documents
and
any copies thereof and any other property belonging to the Company whether
in
hard copy or in electronic or machine readable form (including but not limited
to Company car, keys, credit and charge cards and passes which may be in your
possession or under your control. All programmes and information about the
Company’s affairs held on a computer owned by you shall be deleted on the
termination of your employment and if requested by the Company you will make
the
computer available for inspection to the Company to ensure that this has been
effectively carried out. You will provide details of any password used by you
to
access the computer system or PC of any member of the Company and will not
retain any copies thereof. If you have a loan you will be required to repay
it
in full before your employment ends. If you owe any money to the Company then
the Company has the right to deduct such sums from any payment due to you.
This
is without prejudice to the Company’s other remedies to recover any sums due
from you to the Company. No outstanding payments will be made to you until
the
requirements in this clause are met. You will, if so required by the Company,
confirm in writing that you have complied with your obligations under this
clause.
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13.
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RESTRICTIVE
COVENANTS
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13.1.
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In
this clause the words and expressions set out below shall have the
following meanings:
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“Customer”
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means
any person, firm or company who was at any time during the Relevant
Period
a customer or client of the Company or any Relevant Group Company
and with
or for whom you or any person reporting to you had dealings, was
responsible or acted or in respect of whom you had access to Confidential
Information during the Relevant Period (other than at a de minimis
level);
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“Effective
Date”
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means
the Termination Date or (if earlier) the date on which you commence
Garden
Leave;
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“Group
Company”
|
means
any holding company for the time being of the Company or any subsidiary
for the time being of the Company or any such holding company (for
which
purpose “holding company” and “subsidiary” shall have the meaning set out
in section 736, Companies ▇▇▇ ▇▇▇▇ as amended);
|
|
“Key
Employee”
|
means
any person who was an employee, director or consultant employed or
engaged
by the Company or any Relevant Group Company at the Effective Date
or at
any time in the Relevant Period and in each case who worked or provided
services in an executive or senior managerial capacity and with or
for
whom you or any person reporting directly to you dealt personally
(other
than at a de minimis level) or had material involvement with or in
respect
of whom you had access to Confidential Information, during the Relevant
Period.;
|
|
“Minority
Investor”
|
means
a person who is the beneficial owner of shares or other securities
of any
company whose shares are quoted on any Recognised Investment Exchange
which when aggregated with shares or other securities beneficially
owned
by his or her spouse, children, step children, parents and parents’
children total no more than one per cent. of any single class of
shares or
other securities in such company;
|
|
“Prospective
Customer”
|
means
any person, firm or company who was at any time during the period
of 6
months immediately preceding the Effective Date in negotiations with
the
Company or any Relevant Group Company with a view to such person,
firm or
company dealing with the Company or any Relevant Group Company as
a
customer or client and with or for whom you or any person reporting
directly to you had dealings , was responsible or acted (other than
at a
de minimis level) or about whom you had access to Confidential Information
during the said period;
|
9
|
“Prospective
Supplier”
|
means
any person, firm or company who was at any time during the period
of 6
months immediately preceding the Effective Date in negotiations with
the
Company or any Relevant Group Company with a view to such person,
firm or
company dealing with the Company or any Relevant Group Company as
a
supplier of goods or services and with or for whom you or any person
reporting to you had dealings, was responsible or acted (other than
at a
de minimis level) or about whom you had access to Confidential Information
during the said period.
|
|
“Recognised
Investment Exchange”
|
has
the meaning given to it in section 285, Financial Services and Markets
▇▇▇
▇▇▇▇;
|
|
“Relevant
Capacity”
|
means
either alone or jointly with another or others, whether as principal,
agent, consultant, director, partner, shareholder, independent contractor,
employee or in any other capacity, whether directly or indirectly
through
any other person, firm or company, and whether for your own benefit
or
that of others;
|
| “Relevant Group Company” | means any Group Company to which you have rendered services or which you had management or operational responsibility during the course of your employment at any time during the Relevant Period; |
|
“Relevant
Period”
|
means
the twelve-month period ending with the Effective Date;
|
|
“Restricted
Area”
|
means
England and such other countries in which the Company or any Relevant
Group Company carried on any Restricted Business at the Effective
Date;
|
|
“Restricted
Business”
|
means
the business of providing targeted branded mobile phone content services
and mobile and voice chat and community services direct to customers
and
offering an adult television channel;
|
|
“Supplier”
|
means
any person, firm or company who at any time during the Relevant period
was
a supplier of goods or services to the Company or any Relevant Group
Company and with or for whom you or any person reporting directly
to you
had dealings, was responsible or acted (other than at a de minimis
level)
or about whom you had access to Confidential Information, during
the
Relevant Period.
|
10
|
13.2.
|
You
shall not in a Relevant Capacity (save as a Minority Investor or
with the
express written consent of the
Board):
|
|
13.2.1.
|
for
the period of 9 months from the Effective Date take any steps preparatory
to or be engaged or concerned or interested in or carry on any business
within the Restricted Area which competes with (or will within such
period
compete with) the Restricted
Business;
|
|
13.2.2.
|
so
as to compete with the Restricted Business for the period of 12 months
from the Effective Date (whether orally or by way of letters, circulars
or
otherwise) canvass, solicit, interfere with or endeavour to entice
away
from the Company or any Relevant Group Company the custom or business
of
any Customer;
|
|
13.2.3.
|
so
as to compete with the Restricted Business for the period of 12 months
from the Effective Date (whether orally or by way of letters, circulars
or
otherwise) canvass, solicit, interfere with or endeavour to entice
away
from the Company or any other Group Company the custom or business
of any
Prospective Customer;
|
|
13.2.4.
|
so
as to compete with the Restricted Business for the period of 12 months
from the Effective Date have any business dealings with or act for
or
provide services to any Customer;
|
|
13.2.5.
|
so
as to compete with the Restricted Business for the period of 12 months
from the Effective Date have any business dealings with or act for
or
provide services to any Prospective
Customer;
|
|
13.2.6.
|
for
the period of 12 months from the Effective Date solicit or endeavour
to
entice away from the Company or any Relevant Group Company or offer
employment to any Key Employee, or do any act which may encourage
any Key
Employee to terminate his employment, appointment or contract with
the
Company or any Relevant Group
Company;
|
|
13.2.7.
|
so
as to compete with the Restricted Business for the period of 12 months
from the Effective Date (whether orally or by way of letters, circulars
or
otherwise) canvass, solicit, interfere with or seek to disrupt, or
endeavour to entice away from the Company or any Relevant Group Company
the goods or services provided to the Company or any Relevant Group
Company by any Supplier;
|
|
13.2.8.
|
so
as to compete with the Restricted Business for the period of 12 months
from the Effective Date (whether orally or by way of letters, circulars
or
otherwise) canvass, solicit, interfere with or seek to disrupt, or
endeavour to entice away from the Company or any Relevant Group Company
the goods or services provided to the Company or any Relevant Group
Company by any Prospective
Supplier;
|
|
13.2.9.
|
so
as to compete with the Restricted Business for the period of 12 months
from the Effective Date have any business dealings with any
Supplier;
|
11
|
13.2.10.
|
so
as to compete with the Restricted Business for the period of 12 months
from the Effective Date have any business dealings with any Prospective
Supplier; or
|
|
13.2.11.
|
for
the period of 12 months from the Effective Date do or say anything
likely
or calculated to lead any person, firm or company to cease or not
to offer
to the Company or any other Group Company any rights of purchase,
sale or
agency; or
|
|
13.2.12.
|
encourage,
assist or procure any other person, firm, company or other organisation
to
do anything which, if done by you, would be a breach of any of your
obligations under clauses 13.2.1 to 13.2.11
above.
|
|
13.3.
|
You
shall not at any time (whether during the employment or thereafter)
use
any name (whether as part of a corporate name or otherwise) which
is used
by the Company or any other Group Company at the Termination Date
or any
other name which is likely to cause confusion with any such name
in the
minds of members of the public.
|
|
13.4.
|
You
shall not at any time after the Termination Date represent yourself
as
being employed by or otherwise connected with the Company or any
other
Group Company.
|
|
13.5.
|
You
shall at the request of the Company enter into a direct agreement
or
undertaking with any other Group Company by which you will accept
restrictions corresponding to the restrictions contained in this
clause.
|
|
13.6.
|
You
acknowledge that the provisions of this clause constitute severable
undertakings given for the benefit of the Company and all other Group
Companies and may be enforced by the Company on its own behalf or
on
behalf of any other Group Company.
|
|
13.7.
|
Before
accepting any employment, appointment or engagement with any third
party
either during your employment or at any time during the period of
6 months
after the Termination Date you shall draw the provisions of this
clause to
the attention of such third party.
|
|
13.8.
|
Each
of the restrictions contained at clauses 13.2 to 13.4 constitutes
an
entirely separate and independent restriction and is considered by
the
parties each of whom has taken independent legal advice to be reasonable
and necessary for the protection of the legitimate interests of the
Company and Group but if any such restriction or part thereof shall
be
found void, invalid, illegal or unenforceable by any court of competent
jurisdiction but would be valid if some words were deleted therefrom,
or
the period thereof reduced, or area covered or range of activities
reduced, such restriction shall apply with such modification as may
be
necessary to make it valid and effective.
|
|
13.9.
|
In
the event of any clause contained in this Agreement or any part thereof
being declared invalid or unenforceable by any court of competent
jurisdiction, all other clauses or parts thereof contained in this
Agreement shall remain in full force and effect and shall not be
affected
thereby.
|
|
14.
|
DISCIPLINARY
PROCEDURE AND GRIEVANCE
PROCEDURES
|
The
Company’s Disciplinary Procedure and Grievance Procedure are available from the
Company. This sets out the guidelines for dealing with disciplinary and
grievance issues. However, these procedures will not form part of your contract
of employment.
12
|
15.
|
SAFEGUARDING
INFORMATION AND COMMUNICATION
SYSTEMS
|
|
15.1.
|
The
Company regards the integrity of its computer system as central to
the
success of the business. Its policy is to take any measures it considers
necessary to ensure that all aspects of the system are fully
protected.
|
|
15.2.
|
Misuse
of the computer is a serious disciplinary offence. The following
are
examples of misuse:
|
|
15.2.1.
|
fraud
and theft;
|
|
15.2.2.
|
system
sabotage;
|
|
15.2.3.
|
introduction
of viruses and time bombs;
|
|
15.2.4.
|
using
unauthorized software;
|
|
15.2.5.
|
obtaining
unauthorised access;
|
|
15.2.6.
|
using
the system for private work or game
playing;
|
|
15.2.7.
|
breaches
of the Data Protection Act;
|
|
15.2.8.
|
sending
abusive, rude, discriminatory or defamatory messages via electronic
mail;
and
|
|
15.2.9.
|
hacking.
|
|
15.3.
|
This
list is not exhaustive. Depending on the circumstances of each case,
misuse of the computer system is likely to be considered a gross
misconduct offence, punishable by dismissal. Misuse amounting to
criminal
conduct will be reported to the police. You agree to indemnify the
Company
during and after your employment against all liability resulting
from your
breach of this clause.
|
|
15.4.
|
If
you suspect that a fellow employee is abusing the computer system
should
raise the matter with the CEO.
|
|
15.5.
|
Company
communication systems, which include telephone, fax, electronic mail
and
the Internet, must be used only for legitimate business purposes.
It is
accepted that you may from time to time need to make some personal
use of
these facilities but this and any form of non-business use of these
facilities must be kept to a minimum. Personal use of Company facilities
will be acceptable only provided that the frequency and duration
of such
usage does not interfere with the performance of your duties. The
cost
incurred through the personal use of Company and Group Company facilities
may be re-charged to you and deducted from your salary at the Company’s
discretion. The Company reserves the right to monitor all e-mail/internet
activity by you for the purposes of ensuring compliance with the
Company’s
policies and procedures and of ensuring compliance with relevant
regulatory requirements and you hereby consent to such
monitoring.
|
|
16.
|
INTELLECTUAL
PROPERTY
|
|
16.1.
|
You
acknowledge that because of the nature of your duties and the particular
responsibilities arising as a result of such duties that you owe
to the
Company, you have a special obligation to further the interests of
the
Company.
|
|
16.2.
|
You
shall promptly disclose to the Company any idea or invention created
in
the manner prescribed by sections 39(1) and 39(2) of the Patents
▇▇▇ ▇▇▇▇.
Any such inventions will then be dealt with in accordance with the
provisions expressed in that Act.
|
13
|
16.3.
|
You
acknowledge that all trade marks, registered designs, design rights,
copyright, database rights and other intellectual property rights
(together, where registerable with the right to apply for registration
of
the same, aside from those described in clause 18.2), whether in
existence
now or coming into existence at any time in the future, will, on
creation
either during the normal course of employment or by using materials,
tools
or knowledge made available through your employment, vest in and
be the
exclusive property of the Company or any of Group Company which the
Company shall nominate and if required to do so (whether during or
after
the termination of your employment), you shall execute all instruments
and
do all things necessary to vest ownership in the above rights in
the
Company as sole beneficial owner. Where the same does not automatically
vest by Act of Parliament, you shall immediately assign the same
to the
Company. You irrevocably waive all your rights pursuant to sections
77 to
83 inclusive of the Copyright Designs and Patents ▇▇▇ ▇▇▇▇ and any
statutory amendment thereto.
|
|
16.4.
|
You
appoint the Company to be your attorney in your name and on your
behalf to
execute any such instrument or do any such thing necessary for the
purpose
of giving to the Company or its nominee, the full benefit of the
provisions of this clause 18 and acknowledge in favour of any third
party
that a certificate in writing signed by any director or secretary
of the
Company, that any instrument or act falls within the authority conferred
shall be conclusive evidence that such is the
case.
|
|
17.
|
WHOLE
AGREEMENT
|
|
17.1.
|
This
letter constitutes the whole agreement between the parties. All other
agreements (if any) for service between the Company and you are hereby
abrogated and superseded and any sum or sums paid to you by way of
remuneration under any such other agreements after the commencement
of the
employment shall be deemed to have been received by you on account
of the
remuneration payable to you under this letter. You have not been
induced
to enter into an agreement in the form of this letter in reliance
on, nor
have you been given any warranty, representation, statement, agreement
or
undertaking of any nature whatsoever other than as are expressly
set out
in this letter and, to the extent that any of them have been, you
unconditionally and irrevocably waive any claims, rights or remedies
which
you might otherwise have had in relation
thereto.
|
|
17.2.
|
There
is no collective agreement which directly affects the terms and conditions
of employment contained in this
letter.
|
|
18.
|
RETIREMENT
|
Your
normal retirement age will be 65.
|
19.
|
EXCLUSIVITY
OF SERVICE
|
|
19.1.
|
Unless
prevented by ill health and except during holiday taken in accordance
with
clause 6 you are required to devote your full working time, attention
and
abilities to your job duties during working hours and to act in the
best
interests of the Company at all
times.
|
|
19.2.
|
You
must not during your employment (including, without limitation, any
period
of garden leave) without the written consent of the Company carry
on or be
or plan or attempt to be in any way directly or indirectly engaged,
concerned or interested in any other business or undertaking (whether
alone or on your own behalf or on behalf of or in association or
in
conjunction with any other person and whether as an employee or in
any
other capacity) where this is or is likely to compete with, or be
in
conflict with, the business of the Company or where this may affect
the
efficient discharge of your duties. You must therefore notify the
Head of
Worldwide Sales if you wish to enter into any other employment or
acquire
any other business interest during the course of your
employment.
|
14
|
20.
|
POLICIES
AND PROCEDURES
|
You
agree
to comply with the rules, policies and procedures of the Company in force from
time to time.
|
21.
|
DATA
PROTECTION
|
|
21.1.
|
You
hereby explicitly consent to the processing of personal data, (including
any sensitive personal data, held or obtained or collected by the
Company
in relation to your employment) and the transfer of this data outside
the
EEA for the operation, administration or security arrangements and
legitimate interests of the Company and in order to fulfil the Company’s
obligations to you.
|
|
21.2.
|
You
agree to fully observe and perform the obligations imposed on individuals
contained in the Data Protection ▇▇▇ ▇▇▇▇ (“the Act”) and any codes of
practice or guidance issued under the Act and the Company’s data
protection policy in force from time to time in relation to any personal
data including sensitive personal data that may come into your possession
whilst employed by the Company. Breach of this clause may constitute
a
disciplinary offence.
|
|
21.3.
|
The
Company may from time to time need to make your records available
to its
professional advisers, including its lawyers, accountants or auditors
and
to legal and regulatory authorities, such as the Inland Revenue or
the
FSA, and to other parties which provide products or services to the
Company, such as its pension
administrators.
|
|
21.4.
|
You
should immediately notify Human Resources in writing of any changes
to
your personal details. Such changes may include but are not limited
to:
|
|
21.4.1.
|
your
name, change of address or telephone
number;
|
|
21.4.2.
|
date
of marriage, divorce or births in your immediate
family;
|
|
21.4.3.
|
examination
passes;
|
|
21.4.4.
|
change
of life assurance beneficiary;
|
|
21.4.5.
|
change
of address, telephone number, etc. of next of kin or emergency
contact;
|
|
21.4.6.
|
bank
details;
|
|
21.4.7.
|
arrest,
prosecution or conviction for a criminal
offence;
|
|
21.4.8.
|
any
disciplinary action taken against you by a professional or regulatory
body
or if you become bankrupt, apply for or have made against you a receiving
order, make any composition with your creditors or commit any act
of
bankruptcy.
|
|
22.
|
EQUAL
OPPORTUNITIES POLICY
|
The
Company has an equal opportunities policy which will be given to you on joining.
You will take the benefit of this policy, but you are also required to observe
its terms (although these do not form part of your contract of
employment).
15
|
23.
|
AMENDMENTS
AND WAIVERS
|
|
23.1.
|
No
amendment to the provisions of this letter shall be effective unless
in
writing and signed by both parties hereto or their duly authorized
representatives.
|
|
23.2.
|
All
rights, remedies and powers conferred upon the parties hereto are
cumulative and shall not be deemed or construed to be exclusive of
any
other rights, remedies or powers now or hereafter conferred upon
the
parties hereto or either of them by law or
otherwise.
|
|
23.3.
|
Any
failure at any time to insist upon or enforce any such right, remedy
or
power shall not be construed as a waiver
thereof.
|
|
24.
|
WARRANTY
AND UNDERTAKING
|
|
24.1.
|
You
represent and warrant that you are not a party to any agreement,
contract
(whether of employment or otherwise) or understanding, which requires
you
to preserve the confidentiality of any information, client lists,
trade
secrets or other confidential information or which would in any way
restrict or prohibit him from or conflict with or be breached by
your
undertaking or performing any of the duties of the employment in
accordance with the terms and conditions of this
Agreement.
|
|
24.2.
|
You
undertake that forthwith upon receiving from any person, firm or
company
an offer of employment, agency, consultancy, partnership or joint
venture,
or an approach which may result in such an offer being received,
during
the employment or whilst any of the restrictions in this Agreement
continue in force you will forthwith notify the Company and provide
the
person, firm or company making the offer with a full and accurate
copy of
this Agreement.
|
|
25.
|
NOTICES
|
Any
notice required or desired to be delivered under this Agreement shall be in
writing and shall be delivered personally, by courier service, by registered
mail, return receipt requested, or by telecopy and shall be effective upon
actual receipt when delivered or sent by telecopy and upon mailing when sent
by
registered mail, and shall be addressed as follows (or to such other address
as
the party entitled to notice shall hereafter designate in accordance with the
terms hereof):
If
to the
Company:
AMV
Holding Limited
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
If
to
Employee:
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
AMV
Holding Limited
▇▇
▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
|
26.
|
POST-TERMINATION
PROVISIONS
|
Any
provision of this letter which contemplates or is capable of operation after
the
termination of the employment shall apply notwithstanding termination of the
employment for whatever reason including, without limitation, an unlawful
termination by the Company.
16
|
27.
|
GOVERNING
LAW
|
|
27.1.
|
This
letter shall be governed by and construed in all respects in accordance
with the laws of England.
|
|
27.2.
|
Each
of the parties hereto hereby irrevocably submits to the exclusive
jurisdiction of the English Courts.
|
We
hope
you find this offer acceptable. Please confirm your agreement to these terms
of
employment by signing the enclosed copy of this document and returning it to
the
Company’s General Counsel.
Yours
sincerely
On
behalf
of the Company
|
By:
|
/s/
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
|
Title:
|
Director
|
Personal
ID Number:
I
confirm
my agreement to the above terms of employment.
|
/s/
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
|
|
|
Name:
|
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇
|
Personal
ID Number:
17