EMPLOYMENT CONTRACT dated 1 of April 1998
1st Party Pritech Corporation Limited
a Company incorporated in New Zealand
and having its registered office at
Auckland.
Employer
2nd Party Xxxxx Xxxxxxx Xxxxxxx
of Auckland, Managing Director.
Executive
CONTRACT:
The Employer agrees to employ the Executive and the Executive accepts employment
on the terms and conditions set out in Schedules I, II and III The terms and
conditions set out in these schedules supersedes any other employment
arrangements that may have existed between the Executive and the Employer prior
to the signing of this contract.
SIGNED by the Employer by its authorised ) X [ILLEGIBLE]
officer name to be included ) -----------------------------
in the presence of: ) Director
)
) X [ILLEGIBLE]
) -----------------------------
) Director
SIGNED by the Executive ) X [ILLEGIBLE]
Xxxxx Xxxxxxx Xxxxxxx ) -----------------------------
in the presence of: ) [ILLEGIBLE]
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SCHEDULE I
Term Meaning
Annual Leave 20 Working Days per annum.
Commencement Date The 1st day of April 1998.
Company The Employer, Pritech Corporation limited.
Escrow period The period commencing on the commencement date and
ending on 30 September 2000.
Notice 90 days.
Minimum Hours 8 hours per Working Day; and
40 hours per week.
Payment Provisions Payments will be made monthly on the 30th day of each
month by direct credit.
Position Managing Director at Auckland.
Position Description To be advised
Salary $120,000 per annum.
Bonus Salary $50,000, to be paid in full, within 3 months of the end
of each of the Company's financial years, provided the
Employer's net pre tax profit targets for that year are
met. Progress towards such targets shall be estimated,
and a proportionate instalment of the Bonus paid,
quarterly. If such profit target is not met in any year
then that year's Bonus Salary shall xxxxx by the same
proportion as the actual net pre tax profit falls short
of the target. Any adjusted sum shall be paid or
refunded at the time the final payment for that year is
due.
Special Leave 10 Working Days.
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SCHEDULE II
TO: The Executive
Your general conditions of employment are:
1. INTERPRETATION
Definitions
1
Term Meaning
Act The Employment Contracts Xxx 0000
Working Day Any day of the week other than:
a. Saturday and Sunday.
b. Any public holiday within the meaning of s.7A of
the Holidays Xxx 0000.
Interpretation
2 In this contract:
a. Unless the context otherwise requires terms given a meaning in
Schedule I and clause 1.1 have that meaning.
b. Clause headings are for reference purposes only.
2. TERM OF CONTRACT
1 Neither party shall terminate this contract (other than for serious
misconduct or poor performance) during the Escrow Period.
2 After the expiry of the Escrow Period your employment shall continue on the
terms and conditions set out in this contract.
3. COMMENCEMENT DATE
1 You must commence work on the Commencement Date.
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4. WORK
1 You must carry out from the Commencement Date:
a. the work in the Position Description; and
b. all other work which the Employer reasonably requires you to do.
5. HOURS OF WORK
1 You must work the Minimum Hours.
1 You may have to work such additional hours as may be reasonably be required
to properly carry out your duties.
6. PAYMENT
1 You will be paid the Salary in accordance with the Payment Provisions and
the Bonus Salary and Over Achievement Bonus each in one sum as provided for
in Schedule 1.
2 All other payments due to you will be paid in accordance with the Payment
Provisions unless stated otherwise.
7. ANNUAL LEAVE
1 The Employer acknowledges and accepts your continuity of service with the
Company and recognises that your Annual leave for the year ending 31 March
1998 shall become due on the Commencement Date. Annual Leave for subsequent
years shall become due on the anniversaries of the Commencement Date.
2 You may take paid Annual Leave by arrangement between yourself and the
Employer but if you cannot agree then at times fixed by the Employer. The
Employer will make reasonable endeavours to accommodate your wishes for the
timing of Annual leave.
3 You are required to use each year's annual holiday entitlement within 24
months of its becoming due, or you may forfeit accrued annual holiday
entitlement in excess of your minimum entitlement under the Holidays Xxx
0000.
4 Failure to take your leave when reasonably required by the Employer may be
treated by the Employer as serious misconduct by you.
8. SPECIAL LEAVE
1
a. You will be entitled to paid Special Leave in each 12 month period of
employment.
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b. Special Leave under this clause may be taken only when:
i. you are sick;
ii. your spouse or partner is sick;
iii. your dependant child or dependant parent or the parent of your
spouse or partner is sick;
iv. you suffer a bereavement.
c. At least 4 hours notice of your intention to take Special Leave must
be given unless impracticable.
d. You are entitled to accrue up to 120 days personal sick leave unused
but no payment will be made to you for any unused sick leave on
termination of your employment for any reason.
e. Where leave is taken because of sickness, you may be required to
produce a medical certificate.
2 The provisions of Section 30A of the Xxxxxxxx Xxx 0000 apply to Special
Leave under this Contract except to the extent that they are modified by
clause 8.1.
9. EXECUTIVE'S DUTIES
1 You must:
a. Diligently and faithfully serve the Employer and use your best
endeavours to promote and protect the Employer's interests;
b. Carry out and comply with all lawful directions which you are given by
the Employer; and
c. Devote your efforts during normal business hours and other necessary
times to the discharge of your duties.
10. ABANDONMENT OF EMPLOYMENT
1 You will be deemed to have terminated employment if you are absent from
work for a continuous period of 5 Working Days without notifying the
Employer.
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11. NOTICE
1 After the expiry of the Escrow Period you may terminate your employment at
any time by giving Notice in writing to the Employer.
2 The Employer shall not (other than for serious misconduct or poor
performance) terminate your employment prior to the expiry of the Escrow
period, but thereafter if the Employer terminates your employment in
circumstances requiring notice, the specified Notice, in writing, will be
given to you.
3 The Employer may pay Salary in lieu of notice.
12. TERMINATION ON MEDICAL GROUNDS
1 If you are prevented by accident or ill health from carrying out your
duties under this agreement:
a. You will continue to receive your full salary and allowances for a
period of up to 120 working days but shall, if required, furnish the
Employer with medical evidence of your incapacity and its cause to the
satisfaction of the Employer;
b. If your incapacity continues for more than 120 working days or if you
are incapacitated at different times for more than 120 working days in
any 12 month period then in either of those cases the Employer may
terminate your employment without notice or compensation in lieu of
notice;
c. If at any time in the opinion of a medical practitioner nominated by
the Employer you have become permanently disabled or incapacitated,
the Employer may terminate your employment without notice or
compensation in lieu of notice.
13. TERMINATION FOR SERIOUS MISCONDUCT
1 The Employer may at any time terminate your employment without notice for
serious misconduct which includes (but is not limited to):
a. Dishonesty.
b. Refusal to carry out your duties or to carry out any proper and lawful
instruction given by the Employer or any other person acting with the
Employer's authority.
c. Physical violence against any person on the Employer's premises.
d. Being at work under the influence of alcohol or non-prescription
drugs.
e. Repeated or persistent breaches of these terms and conditions.
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f. Being adjudicated bankrupt.
g. Being convicted of any crime:
i. involving dishonesty; or
ii. for which you are sentenced to any term of periodic detention or
imprisonment.
14. PROCEDURES IN RESPECT OF SERIOUS MISCONDUCT
1 The following procedure will be followed if you are suspected of serious
misconduct.
a. In considering any alleged serious misconduct, the Employer will
observe the principles of natural justice. In particular, and without
limitation, you will be entitled to see or hear (as appropriate) any
evidence of the alleged misconduct being considered by the Employer.
b. The Employer will enquire into the circumstances as soon as
practicable after they come to the Employer's notice and give you
reasonable opportunity to comment on the matter.
c. You may be represented at all stages throughout the enquiry (other
than at any meeting convened as a matter of urgency to discuss
suspension).
d. The Employer may temporarily suspend you from work for up to 5 Working
Days on pay until the Employer makes a decision but you must first be
given an opportunity (which may be brief) to comment on suspension.
e. If after hearing your explanation the Employer is satisfied that there
has been serious misconduct, the Employer may terminate your
employment without notice or on other terms which the Employer
considers appropriate.
15. HEALTH AND SAFETY
1 You must co-operate in making all areas of employment healthy and safe
working places. In particular you must:
a. Observe and practice safe work methods.
b. Comply with all codes of practice relevant to the Employer's business.
c. Comply with any policies of the Employer relating to health and safety
in employment.
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16. IMPLIED TERMS
1 The terms implied by law in employment contracts are implied in this
contract unless they are inconsistent with it and less beneficial to you.
17. SEVERANCE
1 Any illegality, unenforceability or invalidity in this contract will not
affect the rest of it which will remain in full force and effect.
SCHEDULE III
To: The Executive.
Your special conditions of employment are:
18. ADDITIONAL BENEFITS
1 The Employer will:
a. Pay all business call charges incurred by you from your private and
cellular telephones.
b. Pay all your Internet connection and user charges.
c. Pay all reasonable travel expenses incurred in the performance of your
duties on presentation of valid accounts.
d. Reimburse you for all expenses incurred by you in relation to your
duties on presentation of valid accounts.
e. Pay up to $500 towards subscriptions or levies for your membership of
professional organisations and for professional publications chosen by
you with the Employer's approval.
f. Pay your Medical Insurance premiums. You may elect to have your spouse
and dependent children included in your Medical Insurance scheme at
your own expense. The Employer will, if required, facilitate this and
will be entitled to deduct the appropriate proportion of the premium
from your salary.
2 You will be allocated a motor vehicle and parking facilities in accordance
with current policy. That policy provides for the allocation of a Peugeot
306 Cabriolet (or its equivalent) to the Position. The motor vehicle will
be replaced with an equivalent new model every three years.
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3 Operating costs (including licensing and insurance) for business and
reasonable personal use of the vehicle will be met by the Employer. You
will be personally responsible for meeting petrol costs during holiday
periods and for "extraordinary" personal use at other times (e.g. long
personal trips out of town), for garaging the vehicle overnight, and for
ensuring that the care and use of the vehicle are in accordance with the
policy.
19. CONFIDENTIALLY
1 In the course of your work for the Employer, you are likely to become aware
of information which is commercially sensitive or valuable to the Employer
(and/or its subsidiary or associated companies) concerning its
organisation, marketing, finance of other affairs and possibly also trade
secrets or secret processes which are commercially sensitive or valuable.
You must not:
a. Reveal any such information to anyone without the express written
authority of the Employer; or
b. Use or attempt to use it in any manner which may injure or cause loss
either directly or indirectly to the Employer or any of its
business(es).
2 The obligation to keep such information confidential continues after
termination of employment. On termination you must return books, manuals or
other documents and all electronic data which you have received, made or
copied in the course of your employment with the Company.
This obligation applies to all information whether or not it is recorded or
memorised and includes information which is or may be of use to any of the
Employer's competitors.
20. DISCLOSURE OF DISCOVERIES ETC
1 You must disclose to the Employer full details of all inventions, designs,
improvements and discoveries relating to the Employer's business and made
by you in the course of your employment.
2 All such inventions, designs, improvements and discoveries will be the sole
property of the Employer.
3 You must assist the Employer in doing everything necessary (at the
Employer's expense) to:
a. obtain letters patent and vest the full and exclusive title to the
letters patent and to any copyright in drawings, plans or diagrams
relating to such
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inventions, designs, improvements and discoveries in the name of the
Employer; and
b. protect them against infringement by others.
4 You irrevocably appoint the Employer as your attorney to undertake all such
action on your behalf in your name if you fail to do so.
21. INTELLECTUAL PROPERTY RIGHTS
1 You must not directly or indirectly contest any of the Employer's rights or
those of any associate or licensee of the Employer in respect of any
patent, design, trademark, copyright or other right used in connection with
the Employer's business.
22. NO COMPETING INVESTMENTS
1 You must not directly or indirectly invest in or be involved with any
company or business which trades with, or is a customer of the Employer, or
competes with the Employer, without the Employer's consent but you may
purchase for investment purposes only shares, debentures, or other
securities (not carrying the right to control) in any company whose shares
are listed on a recognised stock exchange.
2 Nothing in this clause 22 prevents you from holding not more than 5% of the
issued securities of any entity whose securities are for the time being
listed on any recognised stock exchange whether in New Zealand or
elsewhere.
23. NO COMPETITION WITH EMPLOYER
1 You must not without the Employer's written consent be directly or
indirectly interested, engaged or concerned, at any place in New Zealand in
any business in substantial competition with the Employer, either on your
own account or as a partner with, or as an employee of any other person or
as a shareholder, director, officer, consultant, advisor or employee of any
firm or person or directly or indirectly assist financially any such
business;
a. during employment with the Employer (whether in regular working hours
or otherwise); and
b. for the period of 90 days from the end of the Escrow Period or the
valid termination of your employment with the Employer whichever is
the later.
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2 You must not, during the periods referred to above, on behalf of any other
person, firm or limited company, canvass or solicit business for or from
any customer of the Employer or its subsidiary companies.
3 For the purposes of this clause 23:
a. "in substantial competition with the Employer" means, offering for
sale or reward any specific product also offered by the Employer, or
offering any service using the same tool-sets as any tool-sets used by
the Employer during the term of your employment. Use of any generic
professional, business or technical skills used by you in the delivery
of any product or service but not specific to any particular product
offered or tool-set used by the Employer shall not of itself
constitute substantial competition with the Employer.
b. A customer" includes any person or firm who was or is a customer of
the Employer at any time during your employment.
4 You acknowledge that the restrictive covenants in this clause 23 are
reasonable and necessary in order to protect and maintain the proprietary
interests and other legitimate business interests of the Employer.
24. MANAGEMENT OF THE COMPANY
1 In addition to your executive duties you will be appointed a Director of
the company and shall fill the role of Managing Director.
2 Your Directorship shall continue during the Escrow Period.
3 You and your fellow Directors shall continue to manage the company during
the Escrow Period without any material change to your current management
policies and practise or to the direction of the business of the company or
to accounting policies, provided that:
a. the company meets agreed financial and business targets; and
b. the profit and loss budgets agreed with the company's shareholder are
achieved; and
c. you remain as a director and employee of the company.
Should the Employer use its voting control of the company to breach its
obligations under this clause then you shall be released from the
restraints provided in clause 23 and the Escrow period shall be deemed to
be at an end.
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25. NO OTHER DIRECTORSHIP
1 You must not accept office as a director of any company during your
employment without the prior written consent of the Employer.
26. RESIGNATION AS DIRECTOR
1 If your employment is terminated you must resign from:
a. any directorship of the Employer and its related companies; and
b. any other directorship to which you have been appointed to in the
course of your employment under this agreement.
2 You irrevocably appoint the Employer as your attorney to resign on your
behalf and in your name if you fail to do so.
27. PERFORMANCE AND SALARY REVIEW
1 Subject to the provisions of clause 28 There will be no review of your
performance or salary during the Escrow Period.
2 The Employer will review your performance and salary at the end of the
Escrow Period and thereafter at six monthly intervals.
3 You must co-operate with the Employer on each review and provide all
information held by you which is relevant to the review.
4 The Employer will take into account:
a. Your efficiency and competence in carrying out your duties and meeting
any established targets;
b. Your relationship with other staff and public relations with the
Employer's customers;
c. Your other personal attributes including versatility, judgement and
productivity;
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d. Prevailing New Zealand market conditions and trends in remuneration
and other terms of employment for executives in similar roles and with
similar responsibilities;
e. Any other arrangements which have been set in place between you and
the Employer concerning your work.
5 A copy of a written summary of the review will be given to you when the
review is completed but will not be disclosed to any other staff member
with the exception of those who have a proper interest in considering the
review.
6 The Employer may review your performance at any other times the Employer
considers appropriate.
28. POOR PERFORMANCE
1 Notwithstanding the provisions of the preceding clause 27, if the Employer
considers that your performance is substantially below the Employer's
reasonable expectations, the Employer will:
a. Meet with you and
i. discuss the reasons for dissatisfaction;
ii. discuss the steps expected of you to improve performance;
iii. discuss the consequences of your failure to improve including any
prospect of dismissal;
iv. give you an assessment period (not less than 3 months) within
which to meet the Employer's performance criteria.
b. After the meeting give you a written record of the matters discussed.
c. Hold regular meetings with you to discuss progress during the
assessment period.
d. At the end of the assessment period meet with you and advise you of
the Employer's assessment of the improvement (if any) and the
Employer's intended course of action.
e. Provide you with a further opportunity to comment.
f. Provide you with a written record of the last meeting.
2 You may be represented at any of the meetings referred to in clause 28.1.
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3 The Employer in reviewing your performance will observe the principles of
natural justice but, if after a full and unbiased consideration of all
relevant matters the Employer considers that your performance standards
have not been met and your explanation is unacceptable, may, after giving
you Notice as provided for in this contract, dismiss you.
29. REDUNDANCY
1 In this clause "redundancy" means a situation where your employment may be
terminated because there is not enough work available in your position.
There shall be no redundancy during the Escrow Period. In a redundancy
situation the restraints provided for in clause 23 shall not apply.
2 If the Employer considers you may become redundant, the Employer will:
a. consult you a reasonable time in advance; and
b. discuss the reasons for the proposed redundancy; and
c. the reasons for selecting you.
3 If your position is to be made redundant, the Employer will discuss
possible redeployment with you.
4 The Employer will give you at least 3 months notice of termination of
employment for redundancy or will pay you at least 3 months pay in lieu of
notice.
5 No other amount is payable for termination of employment for redundancy.
6 Clause 29.4 does not apply if:
a. the Employer offers you reasonable alternative employment in Auckland;
or
b. a third party offers you employment in Auckland on substantially the
same conditions.
30. CONFLICT
1 These Special Conditions take priority over the General Conditions if there
is any conflict.
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