EXHIBIT 10.48
THIS DEED OF AGREEMENT is made this day 11 of May 2000
BETWEEN
(1) ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ 3 0LW ("the
Executive")
And
(2) VINERS OF SHEFFIELD PLC Company Number 00995820 whose registered office is
at ▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ("the Company")
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. INTERPRETATION
"Board" means the Board of Director of the Company or the directors present at a
duly convened meeting of the directors thereof at which a quorum is present and
includes any committee of the Board duly appointed by it and (where the context
so requires) any reference to the Board in this Agreement shall be construed as
reference to a decision of majority of the Board of Directors;
"Financial Year" means the financial year of the Company from time to time;
"Working Day" means any day which is not a public or Bank Holiday nor a Saturday
or Sunday.
1.1 Unless the context otherwise requires words importing the singular include
the plural and words denoting persons shall include corporations and vice versa.
1.2 Any reference to a statutory provision shall be deemed to include a
reference to any statutory modification or re-enactment of it.
1.3 The clause headings do not form part of this Agreement and shall not be
taken into account in its construction or interpretation and references to
recitals, clauses and the schedule are references to recitals, clause and the
schedule (has the case maybe) of or to this Agreement.
2. APPOINTMENT & DURATION
2.1 Subject to the terms of this Agreement the Company hereby employs the
Executive to serve as Commercial Director and to carry out his duties for the
Company.
2.2 Subject to prior termination by the Company pursuant to clause 12.2 and 12.5
the Executive's employment shall continue until terminated by:-
2.2.1 the Company giving the Executive not less than 6 months' notice in
writing; or
2.2.2 the Executive giving the Company three month's notice in writing.
2.3 Notwithstanding clause 2.2 this Agreement shall automatically terminate when
the Executive reaches the age of 65.
2.4 The Company may from time to time appoint any other person to act jointly
with the Executive in his appointment.
2.5 Until otherwise notified by the Company, the Executive shall be answerable
and responsible to the Managing Director of the Company.
2.6 The Executive's employment shall be deemed to have commenced on 30th April
1990.
3. EXECUTIVE'S DUTIES
3.1 The Executive shall at all times during the period of this Agreement:-
3.1.1 devote the whole of this time, attention and ability to the duties of his
employment, which shall include but not be limited to duties of a managerial and
supervisory nature;
3.1.2 faithfully and diligently perform his duties for and on behalf of the
Company and exercise such powers consistent with them which are from time to
time assigned to or vested in him by the Board;
3.1.3 obey all lawful and reasonable directions of the Board;
3.1.4 use his best endeavours to promote the interests of the Company;
3.1.5 keep the Board (or person designated by the Board) promptly and fully
informed (in writing if so requested) of his conduct of the business of the
Company and provide such explanations in connection therewith as the Board may
require;
3.1.6 not make any untrue or misleading statements relating to the Company
whether to the Board or any other party whatsoever.
3.2 The Executive shall (without further remuneration) for so long as the Board
require during the continuance of this Agreement act as an officer of the
Company or hold any other appointment or office as nominee or representative of
the Company.
4. HOURS AND PLACE OF WORK
4.1 The Executive shall carry out his duties during the hours of 9:00am -5.00pm
and the Executive shall not be entitled to receive any additional remuneration
for work done outside the normal hours of work during which any of the Company's
other employees or officers may be required to provide their services to the
Company.
4.2 The Executive shall perform his duties at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
but the Company may require the Executive to work at any place within Greater
London on either a temporary or permanent basis. The Executive will be given
reasonable notice of any change in his place of work.
5. PAY
5.1 During his appointment the Company shall pay to the Executive a salary at
the rate of (pound)65,00.00 per calendar year renewable annually, which shall
accrue day-to-day and be payable net by equal instalments in arrears on or about
the last working day of each month by direct transfer into the Executive bank
account. The salary shall be deemed to include any fees receivable by the
Executive as an officer (if so appointed_ of the Company or of any other company
or unincorporated body in which he holds (or may in the future hold) office as
nominee or representative of the Company.
5.2 In addition to his salary the Executive will also be entitled to receive a
bonus of 'L'20,000.00 per Financial Year ("Bonus"). The Executive will be
paid the Bonus less any relevant Income Tax and National Insurance deductions
within 6 months of the expiry of the relevant Financial Year.
5.3 Upon termination of the Executive's employment hereunder for any reason
whatsoever the Executive shall be paid within 3 months of the termination of his
employment:-
5.3.1 Any unpaid Bonus in respect of the previous Financial Year; and
5.3.2 An amount to be calculated by reference to the following formula
("Termination Bonus"):
'L'20,000 x (N/12) = Termination Bonus
Where:
N = the number of complete calendar months worked by the Executive during the
Financial Year in which the Termination Date occurred.
6. PENISON SCHEME AND LIFE ASSURANCE
The Company has a pension fund for which the Executive is eligible to join
the terms of which are set out in the Company Handbook.
7. INSURANCE BENFITS
The Company will provide the Executive with private medical insurance cover
through a Company Scheme.
8. EXPENSES
When travelling on behalf of the Company the executive shall be reimbursed
in accordance with the Company's Expense Policy in force from time to time for
the Field Sales Force.
9. HOLIDAYS
9.1 In addition to all English public and bank holidays the Executive is
entitled to 30 working day's paid holiday in each holiday year, which shall run
from April 1st - 31st March ("Holidays Entitlement"). The Executive shall take
his Holiday Entitlement at such time or time as agreed with the Board. The
Executive shall not, without the consent of Board, carry forward any unused part
of his Holiday Entitlement to a subsequent holiday year.
9.2 On the termination of his employment hereunder for whatever reason, the
Executive shall be entitled to pay in lieu of outstanding Holiday Entitlement
and he shall be required to repay to the Company any salary received for holiday
taken in excess of his actual entitlement.
10. INCAPACITY
10.1 If the Executive is unable to attend work for any reason and his absence
has not previously been authorised by the Company he must inform a director of
the Company of the fact of his absence and full reasons for it by 9:30am on the
first Working Day of absence. Someone acting for him may effect this
notification.
10.2 If the Executive is absent for a period of sick absence of more than 8
consecutive days (including weekends) the Executive shall produce a doctor's
statement or certificate. Such certificate shall not be conclusive or binding
upon the Company as to the matters stated therein. If the Company requires a
doctor's statement or certificate for a period of absence of less than 8 days
consecutive days then the Company will pay for the cost of obtaining it.
10.3 If the Executive shall be absent on medical grounds certified in accordance
with the provisions of clause 10.2 he shall be paid his full salary hereunder
for up to 13 weeks absence in any period of 12 consecutive months (such
remuneration shall be inclusive of any Statutory Sick Pay to which the Executive
is entitled under the provisions of the Social Security and Housing Benefit ▇▇▇
▇▇▇▇ PROVIDED THAT any social Security Sickness Benefit or other benefits
recoverable by the executive (whether or not recovered) may be deducted
therefrom) thereafter the Company's Disability Policy shall come into effect.
10.4 For Statutory Sick Pay purposes the Executive's qualifying days shall be
Monday to Friday.
10.5 At any time during the period of his appointment the Executive shall at the
request and expense of the Company permit himself to be examined by a registered
medical practitioner to be selected by the Company and shall authorise such
medical practitioner to disclose to and discuss with the Company's medical
adviser the results of such examination and any matters which arise from it in
order that the Company's medical adviser can notify the Company of any matters,
which, in his opinion, might hinder or prevent the Executive (if during a period
of incapacity) from returning to work for any period or (in other circumstances)
from properly performing any duties of his employment at any time.
11. CONFIDENTIALITY
11.1 The Executive shall not (except in proper course of his duties) during or
after the period of his employment hereunder divulge to any person or otherwise
make use of (shall use his best endeavours to prevent the publication or
disclosure of) any trade secret or secret manufacturing process or any
confidential information concerning the business or finances of the Company or
any of its dealings, transactions or affairs or any trade secret or secret
manufacturing process or any such confidential information concerning the
Company or any of its suppliers, agents, distributors or customers save that the
restrictions in this clause shall cease to apply to information which:-
11.1.1 may come into the public domain, save through breach of this Agreement by
the Executive; or
11.1.2 is shown to the legal advisers of Executive for the purpose of obtaining
legal advice.
11.2 All notes and memoranda of any trade secrets or confidential information
concerning the business of the Company or any of its suppliers, agents,
distributors clients or customers which shall be acquired, received or made by
the Executive during the course of his employment shall be the property of the
Company and shall be surrendered by the Executive from hereunder or at the
request of the Board at any time during the course of his employment.
11.3 Nothing in Clause 10 is intended to prevent the Executive from being able
to make a protected disclosure under the Public ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
12. TERMINATION OF AGREEMENT
12.1 In order to investigate a complaint of misconduct against the Executive the
Board is entitled to suspend the Executive on full pay for so long as may be
necessary to carry out a proper investigation and hold a disciplinary hearing.
12.2 The Company may dismiss the Executive without prior notice or pay in lieu
(and he will not be entitled to compensation or damage) if he:-
12.2.1 commits any act of gross misconduct or repeats or continues (after
written warning) any other material breach of his obligations under this
Agreement;
12.2.2 commits any act of dishonesty whether relating to the Company, any of its
or their employee or otherwise;
12.2.3 been convicted of any criminal offence other than a minor offence under
the Road Traffic Acts for which a custodial sentence is not imposed.
Any delay by the Company in exercising such right of termination shall not
constitute a waiver thereof. The Company will endeavour to deal fairly with
allegations made against the Executive.
12.3 Upon the termination by whatever means of his employment under this
Agreement the Executive shall not at any time thereafter represent himself still
to be connected with the Company.
12.4 On the termination of this Agreement for whatever reason, the Executive
shall at the request of the Company immediately resign from any directorships or
other offices held by him in the Company and from all other appointments or
offices which he holds as nominee or representative of the Company without claim
for compensation and should he fail to do so within 5 Working Days the Company
is hereby irrevocably authorised to appoint some person in his name and on his
behalf to sign any documents or do any things necessary or requisite to effect
such resignations and/or transfers.
12.5 The Company reserves the option in its absolute discretion to terminate the
Executive's employment by paying him an amount equal to his basic salary and
contractual benefits in lieu of notice. Such payments shall be subject to income
tax and national insurance contributions as appropriate. The Executive will not,
under any circumstances have the option to payment in lieu unless the Company
has exercised the right to pay him in lieu.
13. NON SOLICITATION
13.1 The Executive is aware that in the course of his employment under this
Agreement he will have access to and be entrusted with confidential information
and trade secrets of the Company and of or relating to its customers clients and
other third parties. Accordingly, the Company and the Executive mutually agree
that it is in the best interests of both partied for the Executive to enter into
the restrictive covenants set out in clauses 13.2 and 13.3.
13.2 The Executive covenants with the Company that he will not both during his
employment and for the period of 3 months after ceasing to be employed under
this Agreement in connection with selling goods similar to or in competition
with he goods sold by the Company either alone or jointly with or as manager,
agent, consultant or employee of any person, firm or company directly or
indirectly exert any influence over or canvass or by any other means seek or
solicit business or orders from any person who:-
13.2.1 is or at any time during the 24 months preceding termination of the
Agreement has been, a client of the Company and a person, firm or company with
whom the Executive had dealings with during his employment or with whom
employees reporting to or under the direct control of the Executive had dealings
with; or
13.2.2 at the date of termination of this Agreement was in active negotiations
with the Company and a person, firm or company with whom the Executive had
dealings with during his employment or with whom employees reporting to or under
the direct control of the Executive had dealings with.
13.3 The Executive covenants with the Company that he will not both during his
employment and for the period of 3 months after ceasing to be employed under
this Agreement in connection with selling goods similar to or in competition
with the goods sold by the Company either alone or jointly with or as manager,
agents, consultant or employee of any person, firm or company directly or
indirectly endeavour to entice away from the Company or employ or engage for
employment any person who has at any time during the period of 12 months
immediately preceding the termination of the Executive's employment been
employed or engaged by the Company as a key member of staff. For the purpose of
this clause it shall be entirely within the discretion of the Board as to which
of the Company's employees are to be regarded as key members of staff.
13.4 Nothing in this clause 12 shall prohibit the seeking or procuring of orders
or the doing of business not relating or similar to the trade and business of
the Company.
14. RESTRICTIONS ON OTHER ACTIVITIES BY THE EXECUTIVE
During the Executive's employment hereunder, the Executive shall not
(except with the prior sanction of a resolution of the Board) be directly or
indirectly employed, engaged, concerned or interested in any other business or
undertaking, provided that this shall not prohibit the holding (directly or
through nominees) of investments listed on the London Stock Exchange or in
respect of which dealing take place on the Alternative Investment Market on the
London Stock. Exchange or any recognised stock exchange as long as not more than
5% of the issued shares or other securities of any class of any one company
shall be so held.
15. REASONABLENESS AND SEVERABILITY
While the restrictions set out in clause 13 are considered by the parties
hereto to be fair and reasonable in all the circumstances, it is agreed that if
any of such restrictions shall be judged to be void or ineffective for whatever
reason but would be adjudged to be valid and effective if part of the wording
were deleted or the periods thereof reduced the said restrictions shall apply
with such modifications as may be necessary to make them valid and effective.
16. DISCIPLINARY & GRIEVANCE PROCEDURE
The Company's Disciplinary and Grievance Procedures shall form part of the
Executive's contract of employment.
17. COMPANY MOBILE PHONE
The Executive shall be entitled to receive a Company mobile phone. The
Company shall pay for all business calls made on the phone.
18. COMPANY CAR
The Executive shall be provided with a company car in accordance with the
Company's Car Policy. The Company reserves the right to change the car policy
from time to time.
19. GENERAL
19.1 This Agreement is in substitution for any previous contracts of employment
between the Company and the Executive (which shall be deemed to have been
terminated by mutual consent).
19.2 Termination of this Agreement shall not affect any provisions that are
intended to operate after termination.
19.3 The validity construction and performance of this Agreement shall be
governed by English law and all disputes claims or proceedings between the
parties relating to the validity, construction, performance or termination of
this Agreement shall be subject to the non-exclusive jurisdiction of the High
Court of Justice in England and Wales provided always that in the event of any
disputes arising between the parties arising out of the Agreement the parties
shall met in order to resolve the dispute in good faith before recourse to legal
proceedings save that this provision shall not apply in the event that one or
other of the parties wishes to proceed with an injunction.
19.4 Any notice or other information required or authorised by this Agreement to
be given by either party to the other may be given by hand or sent by first
class pre-paid post, facsimile transmission or comparable means of
communication) to the other party at the address set out by that party's name at
head of this Agreement or to such other address as from time to time.
19.5 Any notice or other information given by post pursuant to clause 19.4 which
is not returned to the sender as undelivered shall be deemed to have been given
on the two working days after the envelope containing the same was so posted;
and provided that the envelope containing any such notice or information was
properly addressed, pre-paid, registered and posted, and that it has not been so
returned to the sender, shall be sufficient evidence that such notice or
information has been duly given.
19.6 Any notice or other information sent by facsimile transmission or
comparable means of communication shall be deemed to have been duly sent on the
date of transmission, provided that a confirming copy thereof is despatched by
first class, pre-paid post to the other party at the address referred to in
clause 19.4 within 24 hours after transmission.
IN WITNESS whereof this deed has been duly executed and it is intended to be and
is delivered on the date first above written.
Executed as Deed by
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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In the presence of:
Witness Name:-
Address:-
Signature:-
Executed as a Deed by
VINERS OF SHEFFIELD PLC
By two of its duly authorised officers
/s/ ▇▇▇▇ ▇▇▇▇▇ (Director)
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/a/ ▇▇▇▇▇▇ ▇▇▇▇▇ (Director/Secretary)
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