EMPLOYMENT AGREEMENT
AGREEMENT made as of the 9th day of March, 2000 by and between Junction 15
Limited whose registered office is at 00 Xxxxxx Xxxxxx, Xxxxxx X0X 0XX (the
"Company") and Xxxx Xxxx Xxxxxxx, an individual residing at 00 Xxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxx, XX0 0XX (hereinafter called the "Employee").
W I T N E S S E T H:
WHEREAS, this Agreement is intended to supersede and replace all prior
agreements, understandings and arrangements between or among the Company and the
Employee relating to the employment of the Employee.
NOW, THEREFORE, it is agreed as follows:
1. Retention of Services. The Company hereby retains the services of
Employee, and Employee agrees to furnish such services, upon the terms and
conditions hereinafter set forth.
2. Term. Subject to earlier termination on the terms and conditions
hereinafter provided, and further subject to certain provisions hereof which
survive the term hereof, the term of this Agreement shall be comprised of a
three (3) year period of employment commencing on the date hereof.
3. Duties and Extent of Services During Period of Employment.
(a) During the term of employment, Employee shall be employed as a
Director of the Company or in such other equivalent executive positions with the
Company and/or its associated companies, which shall mean Vizacom Inc.
("Vizacom") being the Company's holding company and any company which is for the
time being a subsidiary of Vizacom ("Associated Companies and each an
"Associated Company"), as may be determined by the Board of Directors of Vizacom
("the Board"). In such capacity, Employee agrees that he shall devote his full
time business efforts to serving the Company and Associated Companies under the
direction of the Board shall perform all duties incident to his position on
behalf of the Company to the best of his ability and shall perform such other
duties as may from time to time be assigned to him by the Board.
(b) The Company and Employee agree that Employee shall perform his
basic responsibilities and duties hereunder at the offices for the time being of
the Company in Greater London or elsewhere in the United Kingdom as the Company
and the Employee may agree; subject, however, to the travel requirements of his
position.
4. Remuneration. During the period of employment, Employee shall be
entitled to receive the following compensation for his services:
(a) The Company shall pay to Employee a salary at an initial rate of
BP50,000 per annum payable in equal bi-weekly installments or in such other
manner as shall be consistent with the Company's payroll practices. Such salary
shall be reviewed (upwards only) on the first and second anniversary of this
Agreement.
(b) (i) In addition to the salary provided in clause (a) above, the
Company shall pay to Employee, sales commission with respect to each financial
quarter or part thereof during the Term of this Agreement equal to 9% of Net
Revenues from new or incremental business generated to the Base Business by
Employee after the date of this Agreement. Such commission shall be payable so
long as the Employee remains employed by the Company. The terms of the
commission entitlement (including the rate thereof) shall be reviewed annually
by the Company as at the end of each fiscal year to reflect changes in actual
and expected Net Revenues but the commission entitlement shall be varied only by
agreement of the Board and the Employee.
(ii) For purposes of this Paragraph 4(b),
(A) "Base Business" shall mean the business conducted by the
Company, including any company, entity or other business acquired by or merged
or combined with Junction which carries on effectively the same business;
(B) "Net Revenues" shall mean the net revenues of the Base
Business, net of returns and/or any value added resale of hardware, discounts
and allowances, as computed in accordance with generally accepted accounting
principles in the United States consistently applied with the accounting
principles of the Company ("GAAP"), but not including any amortization of
goodwill;
(C) The Company shall have sole authority and control over
the conduct of the Base Business, including without limitation, all decisions
relating to customers and accounts to be solicited, pricing and marketing
programs. In addition, the Company, in its sole discretion, may determine:
(1) to acquire the stock or assets or any other businesses
or to otherwise enter new businesses or to consolidate operations with the
Company or other subsidiaries of the Company in common facilities, or
(2) to terminate or sell the Base Business or any other
business of Junction.
(D) The Company shall maintain separate accounting records
for the Base Business sufficient to compute the commission set forth above.
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(iii) The Company shall pay to Employee within 30 days after the
end of each financial quarter during the term of this Agreement, the commission
due in respect of such quarter accompanied by a notice containing the
computation of the commission set forth above (the "Commission Notice") for such
quarter. If the Employee does not agree in good faith with the calculation of
the commission set forth in the Commission Notice, the Employee shall deliver a
notice ("the Dispute Notice") to the Company setting forth in detail the nature
and extent of such disagreement within 30 days after the date of the Commission
Notice. If the Company and the Employee fail to agree with respect thereto
within 30 days after receipt by the Company of the Dispute Notice, the dispute
shall be referred to a national firm of independent chartered accountants to be
designated by the Company (which shall not be the Company's regular chartered
accountant), subject to being reasonably acceptable to the Employee (the
"Independent Accountants"), for resolution within 30 days after the referral of
such dispute to the Independent Accountants. Each of the Company and the
Employee shall bear their own expenses with respect to any such dispute, and
each of the Company and the Employee shall bear one-half of the expenses of the
Independent Accountants in connection therewith.
(iv) In the event that this Agreement is terminated other than
pursuant to Section 9(a), the Employee shall be entitled to receive the amount
which would be payable under this clause (b) for each financial quarter or part
of financial quarter prior to the date of such termination together with a final
payment of commission to be agreed between the Board and the Employee having
regard to business generated by the Employee but not yet invoiced but taking
into account the cost of work to be done by the Company for that business to be
invoiced (the amount of such final commission to be referred to the Independent
Accountants for resolution under Section 4(b)(iii) if not so agreed).
5. Employee Benefits; Expenses.
(a) During the term of this Agreement, the Company shall provide to
the Employee and his family the right to participate in the Company's then
existing medical and dental insurance and other employee benefit plans and
policies on the same terms as are then generally available to the Company's
executive and managerial employees.
(b) Employee shall be entitled to paid vacation each year during the
term of this Agreement at the rate of twenty (20) days per annum. Vacation shall
be taken each year and, if not taken, shall be carried over for one (1) year
and, if not taken during such carry-over period, shall be forfeited.
(c) The Corporation shall reimburse Employee, in accordance with the
practice followed from time to time for other executive and managerial officers
of the Company, for all reasonable and necessary business and traveling
expenses, and other disbursements incurred by Employee for or on behalf of the
Corporation in the performance of Employee's duties hereunder, upon presenta
tion by Employee to the Company of an appropriate accounting or documentation of
such.
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(d) During the term of this Agreement, the Company shall make employer
contributions to the Company's Group Pension Plan operated by Scottish Mutual
the greater of 10% of salary pursuant to clause 4(a) or on the same terms as are
then generally available to Vizacom's executive and managerial employees.
6. Disability. If Employee, during the period of employment, becomes
unable for any 90 consecutive days in any twelve-month period due to ill health
or other physical or mental incapacity, to perform his services hereunder, the
Company may thereafter, upon at least 60 days' written notice to Employee, place
Employee on disability status. After such action by the Company, Employee shall
no longer be entitled to receive any compensation hereunder until the Employee
returns to full-time status.
7. Confidential Information.
(a) In the course of Employee's employment by the Company, Employee
will have access to and possession of valuable and important confidential or
proprietary data or information of the Company and its operations. Employee will
not during Employee's employment by the Company or at any time for a period of
five (5) years thereafter divulge or communicate to any person nor shall
Employee direct any employee, representative or agent of the Company or its
affiliates to divulge or communicate to any person or entity (other than to a
person or entity bound by confidentiality obligations similar to those contained
herein and other than as necessary in performing Employee's duties hereunder) or
use to the detriment of the Company or for the benefit of any other person or
entity, including without limitation any competitor, supplier, licensor,
licensee or customer of the Company , any of such confidential or proprietary
data or information or make or remove any copies thereof, whether or not marked
or otherwise identified as "confidential" or "secret." Employee shall take all
reasonable precautions in handling the confidential or proprietary data or
information within the Company to a strict need-to-know basis and shall comply
with any and all security systems and measures adopted from time to time by the
Company to protect the confidentiality of confidential or proprietary data or
information.
(b) The term "confidential or proprietary data or information" as
used in this Agreement shall mean information not generally available to the
public, including, without limitation, all database information, personnel
information, financial information, customer lists, account lists or other
account information, names, telephone numbers or addresses, supplier lists,
trade secrets, patented or proprietary information, forms, information regarding
products, operations, systems, methods, financing, services, know how, computer
and any other processed or collated data, computer programs, pricing, marketing,
media and advertising data.
(c) Employee will at all times promptly disclose to the Company in
such form and manner as the Company may reasonably require, any inventions,
improvements or procedural or methodological innovations, including without
limitation relating to programs, methods, forms, systems, services, designs,
marketing ideas, products or processes (whether or
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not capable of being trademarked, copyrighted or patented) conceived or
developed or created by Employee during or in connection with Employee's
employment hereunder and which relate to the business of the Company
("Intellectual Property"). Employee agrees that all such Intellectual Property
shall be the sole property of the Company. Employee further agrees that Employee
will execute such instruments and perform such acts as may reasonably be
requested by the Company to transfer to and perfect in the Company all legally
protectable rights in such Intellectual Property.
(d) All written materials, books, records and documents made by
Employee or coming into Employee's possession during Employee's employment by
the Company concerning any products, processes or equipment manufactured, used,
developed, investigated, purchased, sold or considered by the Company or
otherwise concerning the business or affairs of the Company, including without
limitation any files, customer records such as names, telephone numbers and
addresses, lists, firm records, brochures and literature, shall be the sole
property of the Company, shall not be removed from the Company's premises by the
Employee, and upon termination of Employee's employment by the Company, or upon
request of the Company during Employee's employment by the Company, Employee
shall promptly deliver the same to the Company. In addition, upon termination of
Employee's employment by the Company, Employee will deliver to the Company all
other Company property in Employee's possession or under Employee's control,
including, but not limited to, financial statements, marketing and sales data,
customer and supplier lists, account lists and other account information,
database information and other documents, and any Company credit cards.
(e) The Employee acknowledges that the covenants contained in this
Section 7 are fair and reasonable in order to protect the Company's business and
were a material and necessary inducement for the Company to agree to the terms
of this Agreement. The Employee further acknowledges that any remedy at law for
any breach or threatened or attempted breach of the covenants contained in this
Section 7 may be inadequate and that the violation of any of the covenants
contained in this Section 7 will cause irreparable and continuing damage to the
Company. Accordingly, the Company shall be entitled to specific performance or
any other mode of injunctive and/or other equitable relief to enforce its rights
hereunder, including without limitation an order restraining any further
violation of such covenants, or any other relief a court might award, without
the necessity of showing any actual damage or irreparable harm or the posting of
any bond or furnishing of other security, and that such injunctive relief shall
be cumulative and in addition to any other rights or remedies to which the
Company may be entitled. The covenants in this Section 7 shall run in favor of
the Company and its successors and assigns. In addition, the Employee agrees to
pay the Company the costs it incurs, including reasonable attorneys' fees and
expenses, in bringing and prosecuting any proceeding to enforce the terms of
this Agreement.
(f) The provisions of this Section 7 shall survive the termination of
this Employment Agreement.
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8. Non-Competition.
(a) During the term of this Agreement and for one year thereafter
(the "Restricted Period"), the Employee shall not, without the written consent
of the Company, directly or indirectly:
(i) become engaged, concerned or interested in, render services
to, invest in, represent, advise or otherwise participate in as an officer,
employee, director, stockholder, partner, promoter, agent of, consultant for or
otherwise, any business which is conducted in any of the jurisdictions in which
the Company's other business is conducted and which is competitive with the
business conducted by the Company or any business of an Associated Company which
Employee materially participated, including without limitation the design,
development or implementation of Internet web sites, applications, strategies,
integration, intranets, extranets or customer service; provided, that this
Section 8(a)(i) shall not prohibit the Employee from purchasing or owning as a
passive investment up to three percent (3%) of the outstanding capital stock of
a company which is listed or authorized for trading on any recognised securities
exchange, Nasdaq or the OTC Electronic Bulletin Board as amended;
(ii) for the Employee's own account or for the account of any
other person or entity (A) interfere with the relationship of the Company or any
of the Associated Companies in which the Employee is materially involved with
any of their respective suppliers, customers, accounts, brokers, representatives
or agents or (B) contact, telephone, meet, solicit or transact any business with
any customer, account or supplier of the Company who or which transacts or has
transacted business with the Company at any time during the term of this
Agreement or any such customer, account or supplier of an Associated Company
with whom the Employee has had any material contact or dealings; or
(iii) employ or otherwise engage, or solicit, entice or
induce on behalf of the Employee or any other person or entity, the services,
retention or employment of any person who has been an employee, principal,
partner, stockholder, sales representative, trainee, consultant to or agent of
the Company or Junction within one year of the date of such offer or
solicitation.
(b) Nothing herein contained shall be construed as prohibiting
the Company from pursuing any other remedies available to it for such violation,
including but not limited to any injunctive or other equitable relief or the
recovery of damages from the Employee.
(c) The Employee acknowledges that the covenants contained in this
Section 8 are fair and reasonable in order to protect the Company's business and
the business of the Associated Companies and were a material and necessary
inducement for the Company to agree to the terms of this Agreement. The Employee
further acknowledges that any remedy at law for any breach or threatened or
attempted breach of the covenants contained in this Section 8 may be inadequate
and that the violation of any of the covenants contained in this Section 8 will
cause
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irreparable and continuing damage to the Company. Accordingly, the Company
shall be entitled to specific performance or any other mode of injunctive and/or
other equitable relief to enforce its rights hereunder, including without
limitation an order restraining any further violation of such covenants, or any
other relief a court might award, without the necessity of showing any actual
damage or irreparable harm or the posting of any bond or furnishing of other
security, and that such injunctive relief shall be cumulative and in addition to
any other rights or remedies to which the Company may be entitled. The covenants
in this Section 8 shall run in favor of the Company and its successors and
assigns. In addition, the Employee agrees to pay the Company the costs it
incurs, including reasonable attorneys' fees and expenses, in bringing and
prosecuting any proceeding to enforce the terms of this Agreement.
(d) In case any one or more of the terms or provisions contained in
this Section 8 shall for any reason be held invalid, illegal or unenforceable,
such invalidity, illegality or unenforceability shall not affect any other terms
or provisions hereof, but such term or provision shall be deemed modified or
deleted as or to the extent required by applicable law, and such modification or
deletion shall not affect the validity of the other terms or provisions of this
Section 8. In addition, if any one or more of the restrictions contained in this
Section 8 shall for any reason be held to be unreasonable with regard to time,
duration, geographic scope or activity, the parties contemplate and hereby agree
that such restriction shall be modified and shall be enforced to the full extent
compatible with applicable law. The parties hereto intend that the covenants
contained in this Section 8 shall be deemed a series of separate covenants for
each country, state, county and city. If, in any judicial proceeding, a court
shall refuse to enforce all the separate covenants deemed included in this
Section 8 because, taken together, they cover too extensive a geographic area,
the parties intend that those of such covenants (taken in order of the cities,
counties, states and countries therein which are lease populous) which if
eliminated would permit the remaining separate covenants to be enforced in such
proceeding shall, for the purpose of such proceeding, be deemed eliminated from
the provisions of this Section 8.
(e) The provisions of this Section 8 shall survive the termination of
this Employment Agreement.
9. Termination.
(a) The Company may terminate the Employee's services hereunder "for
cause" by delivering to Employee not less than ten (10) days prior to the date
on which the termination is to be effective, a written notice of termination for
cause specifying the act, acts or failure to act that constitute the cause. For
the purposes of this agreement, "for cause" shall mean; (i) any act of
dishonesty, fraud or embezzlement materially adversely affecting the financial,
market, reputation or other interests of the Company, or any affiliate thereof,
(ii) in the event that the Company places Employee on disability status pursuant
to Section 6 hereof more than once during the term hereof, (iii) in the event of
a conviction of the Employee for any felony or other serious crime materially
adversely affecting the Company, or any knowing violation of any English or
United States federal or state securities law or regulation, (iv) repeated
failure to
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perform Employee's duties hereunder after notice and thirty (30) days
to cure such failure, (v) any material breach by the Employee of this Agreement
after notice and thirty (30) days to cure such failure, or (vi) the death of
the Employee.
(b) If the Company terminates Employee's employment hereunder for any
reason other than "for cause" as set forth in Section 9(a) hereof, (i) the
Company shall pay to the Employee compensation pursuant to Sections 4(a) and
4(b) (and for these purposes the Net Revenues of the Base Business with respect
to each remaining fiscal year during the terms of this Agreement shall be deemed
to be equal to 120% of such Net Revenues for each immediately preceding fiscal
year) hereof at the time and in the manner provided for herein and (ii) the
obligations of the Employee pursuant to Section 8 of this Agreement shall
terminate, and no other compensation payable hereunder shall be payable to the
Employee. If the Company terminates Employee's employment hereunder "for cause"
as set forth in Section 9(a) hereof, Employee shall not be entitled to receive
any further compensation hereunder. Employee and the Company acknowledge that
the foregoing provisions of this paragraph 9(b) are reasonable and are based
upon the facts and circumstances of the parties at the time of entering into
this Agreement, and with due regard to future expectations.
(c) The Employee may terminate this Agreement with effect from the
second anniversary of the date hereof subject to giving to the Company not less
than one hundred and eighty (180) days prior to the date on which the
termination is to be effective, a written notice of termination. The provisions
of Sections 4(a) and 4(b) shall continue unaffected up to the date of
termination.
10. Notices. Any notice to be given to the Company hereunder shall be
deemed sufficient if addressed to the Company in writing and delivered or mailed
by certified or registered mail to it at Glenpointe Center East, 300 Xxxxx X.
Xxxx Boulevard, Box 18, 7th Floor, Teaneck, New Jersey 07666, Attention:
President, or to such other address as the Company may hereafter designate, and
a copy to Xxxx X. Xxxxxxx, Esq., Xxxxxxx & Xxxxxxxx, LLC, 00 Xxxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxx 000, Xxxxxxx Xxxxx, Xxx Xxxx 00000. Any notice to be given to
Employee hereunder shall be delivered or mailed by certified or registered mail
to Employee at the address set forth at the head of this Agreement or such other
address as he may hereafter designate.
11. Successors and Assigns; Third Party Beneficiaries. This Agreement
shall be binding upon and inure to the benefit of the successors and assigns of
the Company, and unless clearly inapplicable, all references herein to the
Company shall be deemed to include any such successor. In addition, this
Agreement shall be binding upon and inure to the benefit of the Employee and his
heirs, executors, legal representatives and assigns; provided, however, that the
obligations of Employee hereunder may not be delegated without the prior written
approval of the Board of Directors of the Company. In the event of any
consolidation or merger of the Company into or with any other corporation during
the term of this Agreement, or the sale of all or substantially all of the
assets of the Company to another corporation, person or entity during
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the term of this Agreement, such successor corporation shall assume this
Agreement and becomeobligated to perform all of the terms and provisions hereof
applicable to the Company, and Employee's obligations hereunder shall continue
in favor of such successor corporation.
12. Amendments. This Agreement may not be altered, modified, amended or
terminated except by a written instrument signed by each of the parties hereto.
13. Prior Agreements Superseded. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof and supersedes
any other agreements, oral or written, entered into between Employee and the
Company prior to the date of this Agreement relating thereto.
14. Applicable Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the England and Wales, without regard to
conflicts of laws.
15. Severability. If any provision of this Agreement shall be held by a
court of competent jurisdiction to be contrary to law or public policy, the
remaining provisions shall remain in full force and effect.
16. Waiver. No term or provision hereof shall be deemed waived and no
breach consented to or excused, unless such waiver, consent or excuse shall be
in writing and signed by the party claimed to have waived, consented or excused.
A consent, waiver or excuse of any breach shall not constitute a consent to,
waiver or, or excuse of any other or subsequent breach whether or not of the
same kind of the original breach.
17. Counterparts. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute one and the same
agreement.
18. Acknowledgment. Employee acknowledges that he has carefully read this
Agreement, has had an opportunity to consult counsel regarding this Agreement
and hereby represents and warrants to the Company that Employee's entering into
this Agreement, and the obligations and duties undertaken by Employee hereunder,
will not conflict with, constitute a breach of or otherwise violate the terms of
any other agreement to which Employee is a party and that Employee is not
required to obtain the consent of any person, firm, corporation or other entity
in order to enter into and perform his obligations under this Agreement.
19. Schedule. The provisions of the Schedule (which form part of this
Agreement) set out certain particulars of employment required to be given for
the purposes of employment Rights Xxx 0000.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SIGNED by )
on behalf of JUNCTION 15 LIMITED ) /s/ Xxxx X. Xxxxxxxxx
in the presence of: )
Witness signature: /s/
Name:
Address:
Occupation:
SIGNED by the said )
XXXX XXXX XXXXXXX ) /s/ Xxxx Xxxx Xxxxxxx
in the presence of: )
Witness signature: /s/
Name:
Address:
Occupation:
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THE SCHEDULE
In accordance with the Employment Rights Xxx 0000, the following terms of the
Employee's employment are hereby stated to apply on the date of execution of
this Agreement:
(a) Commencement of employment
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November 1998. No employment with a previous employer counts as part of the
Employee's continuous period of employment.
(b) Hours of work
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See Section 3. There are no fixed hours of work.
(c) Holidays
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See Section 5. If the appointment terminates during the course of the
holiday year the Employee will be entitled in respect of accrued holiday pay to
a sum equal to that proportion of 20 days' remuneration which the number of
complete calendar months he has worked during that year bears to twelve less one
day's salary for each day's holiday taken during that year. If this calculation
produces a negative amount a sum equal to that amount will be deduced from the
Employee's final salary payment.
(d) Pension
-------
A contracting out certificate is not in force in respect of the Employee's
employment.
(e) Disciplinary Procedure
----------------------
1. All disciplinary procedures will take place in a private location and will
be completely confidential.
2. If Employee's conduct or performance does not meet acceptable standards
following informal warnings Employee may be given a formal verbal warning.
3. If the offence is more serious or if there is no improvement following a
verbal warning Employee may be given a written warning.
4. If there is no improvement following a final written warning, Employee may
be dismissed.
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5. In the event of allegations of gross misconduct Employee may be suspended
on pay so that the Company can investigate the circumstances. Gross misconduct
will normally result in dismissal, although, in exceptional circumstances
Employee may be suspended without pay for up to 5 days and given a final
warning.
6. The sorts of offence that the Company considers to be gross
misconduct include theft, fraud, failure to follow company procedure
for dealing with customers and customer records, being under the
influence of drink or non-prescribed drugs while at work, fighting and
physical assault, refusal to carry out a reasonable instruction from your
manager or supervisor, smoking in no smoking areas, racial or sexual
harassment, serious negligence resulting in unacceptable loss or risk of
injury, falsification or misuse of time cards, non-attendance at work
without reasonable excuse. This list is for Employee's guidance and is not
exhaustive.
(f) Appeals Procedure
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Appeals against disciplinary action should be made within 5 days to the
Board Director (or controller on his/her absence), in writing. The Board will
conduct a further hearing before giving a decision, which will be final.
(g) Grievance Procedure
-------------------
1. The aim of the grievance procedure is to provide an open and fair way
for Employee to make known Employee's complaints, and to have these
complaints considered fairly and objectively by the Company.
2. Issues should first be raised informally with Employee's supervisor. If
there is no agreement at this stage it should then be raised with Employee's
manager.
3. Employee's manager will arrange a meeting and make a decision within
7 working days, holidays permitting. This decision will be final.
4. At this second stage Employee may be accompanied by a colleague if
Employee wishes.
(h) Collective Agreement
--------------------
There is no collective agreement applicable to the Employee's employment.
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