EXHIBIT 10.4
T H I S A G R E E M E N T, which supersedes all previous agreements between the
party's is made the 1st day of November 2006 BETWEEN.
(1) "The Company" : Vicon Industries Limited
of Xxxxxx Xxx, Xxxxxxx,
Xxxxxxxxx XX00 0XX
(2) "The Managing
Director" : Xxxxxxxxxxx X Xxxx
of 00 Xxxx Xxxx
Xxxxxxx Xxxxxx
Xxxxxxxxx XX00 0XX
WHEREBY IT IS AGREED as follows:
1. Interpretation:
In this Agreement:
(A) "holding company" and "subsidiary" shall have the respective meanings given
to them by section 736 Companies Xxx 0000;
(B) "associated company" means any company (not being a subsidiary of the
Company or of the holding company for the time being of the Company) in
which the Company or any subsidiary or holding company of the Company or
any subsidiary of any such holding company holds or controls more than 10
per cent in nominal value of the equity share capital or more than 10 per
cent of the voting rights for the time being attached to the issued share
capital;
(C) "the Group means the Company and any holding company or subsidiary for the
time being of the Company and any subsidiary of any such holding company
and any associated company;
(D) "the Board" means the board of directors for the time being of the company
or the directors of the Company present at any meeting of directors at
which a quorum is present and it includes any person nominated by the board
of directors to represent it for the purposes of this Agreement;
(E) "the Business" means the business of the Company and the business of any
company in the Group for which the Managing Director is required to perform
services pursuant to clause 2(B);
(F) "person" shall include any individual company corporation firm partnership
joint venture association organization unincorporated body or trust (in
each case Whether or not having a separate legal personality);
(G) words denoting the singular shall include the plural and vice versa;
(H) references to statutory provision shall be construed as references t those
provisions as respectively amended or re-enacted from time to time or as
their application is modified by other provisions (whether before or after
the date hereof) and shall include any provisions of which they are
re-enactments (whether with or without modification);
(I) headings are inserted for convenience and shall not affect the construction
of this Agreement; and
(J) any provisions which are expressed or intended to take effect or continue
in effect after the termination of this Agreement shall take effect or
continue in effect notwithstanding its termination (for whatever reason).
2. Appointment:
(A) The Company hereby appoints the Managing Director and the Managing Director
agrees to serve the Company as Managing Director on the terms and
conditions contained in this Agreement.
(B) The Managing Director may be required by the Board to perform services not
only for the Company but for any other company within the group and without
further remuneration (except as otherwise agreed).
3. Term of Appointment and Notice Period:
The Managing Director's appointment shall commence on the 1st February 1996
and (subject to the provision of clauses 17 and 18) shall continue until
terminated by either party giving to the other in writing not less than a
period of 12 months. Upon notice given by either party, the Company and the
Managing Director may, upon mutual agreement, determine that a shorter
notice period or none at all is necessary and such shorter period may
prevail. At the conclusion of the paid notice period the Managing Director
shall be entitled to receive the severance payments under clause 4.
4. Severance/Retirement Payment on Certain Terminations or Events:
(A) If the Managing Director retires (anytime after attaining the minimum
retirement age of 60) or the Company terminates the Managing Director's
employment for reasons other than Summary Termination as defined by clause
18, or is terminated under the provisions of clause 17; then the Managing
Director shall be entitled to receive severance or retirement as the case
may be of an amount equal to (pound)100,000 payable in equal monthly
amounts over a 12 month period.
(B) If the Managing Director is required to perform his services outside of a
40 mile radius from the Company's current premises at Fareham, England then
the Managing Director's employment shall be deemed to have been effectively
terminated under sub-clause (A).
5. Duties:
(A) Unless prevented by ill-health or accident or as otherwise agreed by the
Board in writing the Managing Director shall during the continuance of his
appointment devote the whole of his time attention and abilities to the
Business diligently and faithfully serve the Company to the best of his
power skill and ability and use his best endeavours to promote and protect
the interest of the Company.
(B) The Managing Director shall exercise such powers perform such duties and
comply with such directions in relation to the Business consistent with his
appointment as the Board may from time to time confer upon or assign or
give to him.
(C) The Managing Director shall comply with all reasonable and lawful
instructions and regulations from time to time given or made by the Board
and at all times give the Board all such information and assistance as it
may require in connection with the Business.
(D) For the purpose of Employment protection (Consolidation) Xxx 0000 there are
no terms and conditions relating to hours of work or to normal working
hours other than as contained in this Agreement The Managing Director's
hours of work shall be such as may be requisite for the proper discharge of
his duties.
6. Mobility:
The Managing Director may be required to travel within or outside the
United Kingdom in connection with the Business if the Board considers it
necessary or desirable to enable him properly and efficiently to perform
his obligations.
7. Salary and Bonus:
(A) The Company shall pay to the Managing Director during the continuance of
his appointment as remuneration for his services a salary identified in the
side letter to this agreement, (subject to review in accordance with
sub-clause (B)) such salary to accrue from day to day and to be payable in
arrears by equal monthly instalments on or before the last business day of
each calendar month.
(B) The salary payable to the Managing Director by the Company pursuant to
sub-clause (A) shall be reviewed annually.
(C) In addition to the said salary the Managing Director shall be entitled to a
bonus the terms and amount of the said bonus to be agreed between the
parties.
8. Expenses:
The Company shall pay or repay to the Managing Director all reasonable
travelling hotel entertainment and other similar out-of-pocket expenses
properly and necessarily incurred by him in the performance of his duties
but the Company shall be entitled as a condition of reimbursement to such
evidence from the Managing Director as to such expenses as the Board may
reasonably require.
9. Car:
(A) The Company shall make available to the Managing Director a motor car ("the
Car") of a type considered by the Board to be suitable to enable him
properly to perform his duties and for his Personal use.
(B) The Company shall pay the costs in insuring maintaining testing and taxing
the Car and shall reimburse the Managing Director for all its running
expenses for which the Managing Director shall (if requested by the
Company) submit written evidence of payment satisfactory to the Board.
(C) The Car may from time to time be replaced with such type and age of motor
car (whether or not equivalent to the type previously provided) as the
Board may in its discretion decide.
(D) The Managing Director shall be responsible for arranging the carrying out
of such repairs maintenance and testing of the Car as are necessary to
ensure that at all times when the Car is driven on a public highway it is
in the state and condition required by law and (if so required) that a
current test certificate is in force in respect of it.
(E) The Managing Director shall at all times during his appointment hold a
current driving licence entitling him to drive motor cars in the United
Kingdom and shall produce it to the Company on request.
(F) The Managing Director shall at all times conform to regulations which may
from time to time be made or imposed by the Company or any other company
with the Group with regard to motor cars provided for the use of employees.
10. Holidays:
(A) The Managing Director shall be entitled in addition to English statutory
and bank holidays to 20 working days paid holiday in each year of the
Managing Director's appointment.
(B) The Managing Director's holiday shall be taken at such time or times as the
interests and requirements of the Business shall permit and as shall be
agreed between the Board and the Managing Director.
(C) The Managing Director's entitlement to holidays shall accrue
proportionately to the number of days worked by him in any holiday year and
upon termination of his employment hereunder (other than pursuant to clause
18) the Managing Director shall be entitled to receive in respect of
accrued holiday pay a sum equal to one day's salary for each day's holiday
then accrued due but not previously taken by him and if upon termination of
the Managing Director's employment (for whatever reason) the amount of
holiday taken by him exceeds his entitlement pursuant to sub-clause (A) the
Managing Director shall repay to the Company (or the Company may deduct
from any payments due to the Managing Director) salary at the rate for the
time being in force for the period of such excess.
(D) Holidays not taken in any holiday year cannot be carried forward to any
future holiday year.
11. Pension:
The Managing Director shall participate in a pension scheme set up and
administrated by Xxxxxxxxx Xxxxx. The level of contribution made by the
Company shall initially be 5% of the Managing Director's basic salary but
that rate may be altered at the discretion of the Board. The obligations of
the Company in respect of pension are specifically limited to this
contribution.
12. Exclusive Service:
During the continuance of his appointment the Managing Director shall not
without the previous consent of the Board either as principal servant agent
consultant or otherwise carry on or be engaged concerned or interested
directly or indirectly whether alone or in association with any other
person in any trade business or occupation whatsoever other than that of
the Company (otherwise than as a holder of not more than 5% of the shares
of debentures in any company or companies whose shares are listed on any
recognized stock exchange).
13. Confidentiality and the Company's Property:
(A) In this clause:
"the Group" means the group as whole or any company or companies in the
Group "any customer of the Group" means any customer or clients of or
person having business dealings with the Group as a whole or any company or
companies in the Group.
(B) The Managing Director shall not either before or after the termination (for
whatever reason) of his appointment under this Agreement
(a) use to the detriment of the Group or any Customer of the Group or,
(b) disclose divulge or communicate directly or indirectly to any person
any secret or confidential knowledge or information relating to the
business transactions products or affairs of the Group or of any
customer of the Group which he may acquire during the continuance of
his appointment or,
(c) supply or disclose to any person the names or addresses of any
Customers of the Group of details of any contracts or negotiations to
which the Group is a party or of any tenders offers or proposals
submitted or to be submitted by the Group in connection with its
business, except in the proper course of his duties under this
Agreement or as authorized in writing by the Board or as ordered by a
Court of competent jurisdiction,
(C) Upon termination of his employment hereunder (for whatever reason) the
Managing Director shall forthwith deliver to the Company any property of
the Group and of any Customer of the Group which may be in his possession
or under his control including all documents and any copies thereof.
14. Non-Competition:
(A) In this and the next following clause "the restricted business" means
design manufacture consultancy and sale of Closed Circuit Television
equipment.
(B) The Managing Director undertakes with the Company that he will not for the
period of twenty four (24) months following the termination of his
employment hereunder either on his own account or for or on behalf of or
through or in conjunction association or by arrangement with any person
carry on or be engaged concerned or interested in (directly or indirectly)
or in the carrying on of the restricted business within the United Kingdom
and the Republic of Ireland other than as a holder of not more than 5% of
the shares or debentures in any company or companies whose shares are
listed on any recognized stock exchange.
15. Non-Solicitation etc.:
(A) The Managing Director shall not for the period of twenty four (24) months
following the termination of his employment hereunder either on his own
account or for or on behalf of or through or in conjunction association or
by arrangement with any person solicit or entice away or endeavour to
solicit or entice away from the Company or any company within the Group;
(i) any employee manager director or consultant of the Company or any
company within the Group whether or not such person would commit
any breach of contract by reason of his leaving service;
(ii) the custom or business of any person who shall at any time during
the Managing Director's employment hereunder a customer or client
of or in negotiations with the Company or any company in the
Group or who at any time during the Managing Director's
employment hereunder had business dealings with the Company or
any company in the Group in relation to the restricted business.
(B) The Managing Director shall not for a period of twenty four (24) months
after the termination of his employment hereunder either on his own account
or through or for or on behalf of or in conjunction association or by
arrangement with any person provide or arrange or procure or be involved in
the provision of any service falling within the restricted business to any
person who was at any time during the Managing Director's employment
hereunder a customer or client of or in negotiations with the Company or
any company in the Group or who at any time during the Managing Director's
employment hereunder had business dealings with the Company or any company
in the Group in relation to the restricted business.
(C) The restrictions contained in the foregoing sub-clauses and in clause 14
are considered reasonable by the parties for the protection of the business
of the Company and companies in the Group but in the event that any
restriction shall be found to be void but would be valid if some part of it
were deleted or if the period or area of application were reduced such
restriction shall apply with such modification as may be necessary to make
it valid and effective.
(D) If any of the provisions of this clause shall be void unlawful or
unenforceable the validity lawfulness and enforceability of the remaining
provisions of this Agreement shall not be affected or impaired thereby.
16. Inventions:
(A) In this Clause "Invention" means any know how invention formula process of
improvement trade xxxx trade name copyright design plan drawing
specification or device of whatever nature made invented developed or
discovered by the Managing Director during the continuance of the
Appointment and which relates to any process product or activity carried on
made or dealt in by the Company or any other Company in the Group.
(B) If the Managing Director shall either solely or jointly with another make
invent develop or discover any Invention he shall forthwith communicate
written particulars thereof to the Secretary of the Company.
(C) An Invention and all rights therein shall belong to the Managing Director
if it is an invention for which a patent may be granted under the
provisions of Section 1 of the Patents Xxx 0000 ("the Act") and it belongs
to the Managing Director by virtue of Section 39(2) of the Act. All other
Inventions and all rights therein shall belong to the Company.
(D) The Managing Director shall not without the prior consent in writing of the
company divulge or communicate any Invention to any third party nor use the
same for his own personal benefit or otherwise save as provided for in
sub-clause (E) and (F).
(E) On receiving communication of any Invention which belongs to the Managing
Director the Company shall be entitled to negotiate with the Managing
Director with a view to acquiring all or any rights title and benefit in
such Invention The Managing Director shall not without the consent in
writing of the Company disclose the same to any third party except to a
Chartered Patent Agent or other professional advisor for the purpose of
seeking protection for such Invention nor use the same for his own personal
benefit or otherwise until the Company has in writing declined to negotiate
or acquire the Invention or until the expiry of six months from the date of
such communication whichever is the sooner PROVIDED THAT if negotiations
are entered into no disclosure of such Invention to any third party shall
be made until the conclusion of such negotiations except to the extent that
such disclosure is authorized in writing by the Company.
(F) With regard to the Invention 'which belongs to the Company the Company
shall have the right at any time to require the Managing Director at the
Company's expense to execute all such documents and do all such acts and
things as may in the opinion of the Company be necessary or convenient:
(i) to vest such Invention in the Company or its assigns,
(ii) to enable any application or appeal in respect thereof to be made
prosecuted amended or abandoned in any countries of the world in
the name of the Company or its assigns or that of the Managing
Director whether alone or jointly with the Company or some other
person or body,
(iii) to secure the grants of letters patent copyright or registered
design to the Company or its assigns,
(iv) to assign to the Company or as it shall direct all the Managing
Director's rights of whatever nature (including without
limitation his rights in any letters patent or registered design
or copyright or any application therefore) in or in respect of
such Invention or the Managing Director's rights title and
interest in any such rights belonging to him jointly with the
Company or any other person or persons,
(v) to resist any infringement of or actions claims or demands in
relation to the Invention.
(G) In the event that the Company does not intend to use exploit or retain an
Invention disclosed by the Managing Director in accordance with the
provisions hereinbefore contained the Managing Director shall be entitled
to the same for his own use and benefit upon the Managing Director being
notified to that effect in writing by the Secretary of the Company (which
notification shall be given as soon as reasonably practicable).
17. Sick Leave and Sick Pay:
(A) In cases where the Managing Director is absent due to sickness, The Company
provides additional benefits over and above any entitlement to Statutory
Sick Pay.
The sickness year runs from the date of sickness on a rolling year basis.
The Managing Director is entitled to the following payments for sickness
absence:
- 26 weeks at full pay, thereafter any further payments are at the
discretion of the Board of Directors who may, in their sole judgement,
terminate this agreement and the Managing Director's employment.
All payments include Statutory Sick Pay. As with SSP entitlement, the
Absence Notification Procedure must be followed in order to qualify
for payment.
In the event of abuse of the scheme the Company reserves the right to
withdraw or amend the benefit or take disciplinary action.
Where payable, sickness or industrial injury benefit must be claimed
from the DSS and any benefit received must be notified to the Company.
Such benefits will be deducted from the above entitlements.
The Company's Sick Pay Scheme does not prevent the Company from
terminating an individual's employment prior to the expiry of the
scheme.
18. Summary Termination:
The Board may terminate the Managing Director's employment under this
Agreement without notice and without making any further payment beyond the
amount of any remuneration actually accrued due to the date of such
termination if:-
(A) The Managing Director commits any serious breach or repeated or continuing
breach of any of his obligations under this Agreement or is guilty of any
serious misconduct or neglect in the discharge of his duties or of any
serious disobedience.
(B) If the Managing Director commits or has at any time committed any act of
dishonesty or is convicted or has at any time been convicted of any
criminal offence (other than an offence which in the opinion of the Board
does not affect his position as an employee or officer of the Company or
his ability to carry out his obligations hereunder or which has been
disclosed to the Board before the commencement of this Agreement).
(C) If the Managing Director becomes bankrupt or applies for or has a receiving
order in bankruptcy made against him or make any arrangement or composition
with his creditors.
(D) If the Managing Director by his actions or omissions brings the name or
reputation of the Company or any company in the Group into disrepute.
(E) If the Managing Director becomes of unsound mind or becomes a patient for
the purpose of any statute relating to mental health.
(F) If the Managing Director has a disqualification order made against him
under any relevant Act of Parliament.
(G) If the Board reasonably resolves that the Managing Director has failed
materially and without reasonable cause properly to carry out his
obligations hereunder.
19. Directorship:
(A) The salary of the Managing Director under this Agreement is inclusive of
any remuneration to which the Managing Director may be entitled as a
Managing Director of the Company or of any other Company in the Group.
(B) Upon the termination of this Agreement for whatever reason the Managing
Director shall at the request of the Company forthwith resign in writing
his position as a Managing Director of the Company or any other company in
the Group without compensation for loss of office.
(C) If the Managing Director shall cease to be a Managing Director of the
Company this Agreement shall thereupon automatically determine but if such
cessation shall be caused by any act or omission of either party without
the consent concurrence or complicity of the other such act or omission
shall be deemed a breach of this Agreement and determination hereunder
shall be without prejudice to any claim for damages in respect of such
breach.
20. Grievance and Disciplinary Procedures:
There are no specific disciplinary rules applicable to this Agreement if
the Managing Director is dissatisfied with any disciplinary decision
relating to him or if he has any grievance arising from his employment
hereunder he may refer any such matter to the Board who will deal with the
matter by discussion and by a majority decision of those present (other
than the Managing Director) at the Board Meeting at which the matter is
discussed.
21. Notices:
Any notice to be given hereunder shall be given in writing and may be given
either personally or may be sent addressed in the case of the Company to
its registered office for the time being and in the case of the Managing
Director to him at his last known place of residence and any notice so
given by post shall be deemed to have been served forty-eight hours after
posting.
I N W I T N E S S whereof this Agreement has been entered into the day year
first above written
SIGNED by Xxxxxxx X Xxxxx )
Chairman )
for and on behalf of )
Vicon Industries Limited )
in the presence of:- )
Xxxxxxx X Xxxxxxx )
Administrator Vicon Industries Limited )
SIGNED by Xxxxxxxxxxx X Xxxx )
in the presence of:- )
Xxxxxxx X Xxxxxxx )
Administrator Vicon Industries Limited )
