EXECUTIVE EMPLOYMENT AGREEMENT
EXHIBIT
10.2
between
PureDepth
Incorporated Limited
and
Xxxxxxx
Xxxxxx
|
Table
of contents
|
Table
of Contents
|
1.
|
Position,
Duties, Remuneration, Commencement and Service
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1
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||
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2.
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Hours
of Work
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2
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||
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3.
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Expenses
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2
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||
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4.
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Consent
To Deductions
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2
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||
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5.
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Taxes
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2
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||
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6.
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Annual
Leave
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3
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||
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7.
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Public
Holidays
|
3
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||
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8.
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Sick
Leave
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3
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9.
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Bereavement
Leave
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3
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||
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10.
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Parental
Leave
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4
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11.
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Inventions
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4
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12.
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Confidentiality
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4
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13.
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Conflicts
Of Interest; Non-Competition
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4
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||
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14.
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Right
To Injunction
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5
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15.
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Legislation
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5
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||
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16.
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Merger
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5
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17.
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Termination
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5
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18.
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Loyalty
Bonus
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8
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||
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19.
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Medical
Insurance
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9
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20.
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Governing
Law
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9
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21.
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Employment
Relations Problems
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9
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22.
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Waiver
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10
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23.
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Notices
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10
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24.
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Modification
Or Amendment
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10
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25.
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Entire
Understanding
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10
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26.
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Unenforceability
Of Provisions
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11
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27.
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Partial
Invalidity
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11
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28.
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Counterparts
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11
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29.
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Independent
Advice
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11
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Schedule
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13
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|||
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Details
of Remuneration, Terms and Additional Terms
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13
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Date:
|
March
31, 2005
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Parties
| 1. |
PureDepth
Incorporated Limited (“PureDepth”)
|
| 2. |
Xxxxxxx
Xxxxxx (“the executive”)
|
Background
|
A.
|
PureDepth
is a company providing specialist expertise in the area of multi
layer
visual display technology
(“Business”).
|
| B. |
The
executive is experienced in executive operational
management.
|
|
C.
|
PureDepth
has appointed the executive to the position of Chief Operating
Officer.
|
|
D.
|
The
parties wish to record the terms and conditions under which the
executive
has and will continue to provide his/her duties to
PureDepth.
|
Agreement
| 1. |
Position,
Duties, Remuneration, Commencement and
Service
|
Position
and Duties
| 1.1 |
The
executive’s position will entail the duties and responsibilities set out
in the Position
Description
attached as an appendix to this agreement, and which collectively
are
incorporated by reference (“Duties”).
The title of the position and Duties may be amended by PureDepth
following
consultation with the
executive.
|
| 1.2 |
In
addition to the Duties, PureDepth may require the executive to carry
out
additional duties and responsibilities similar to and consistent
with the
Duties as is reasonable in the circumstances under the direction
of the
Executive Chairman for the time being of
PureDepth.
|
| 1.3 |
The
executive covenants to carry out the Duties and to conduct his activities
and carry out all his/her functions as required to be performed by
the
executive:
|
| a. |
in
utmost good faith;
|
| b. |
in
the best interests of PureDepth;
|
| c. |
in
strict compliance with the terms of this
agreement;
|
| d. |
to
the highest standards applicable and to the best of his/her ability;
and
|
|
Xxxxxxx
Xxxxxx
|
| e. |
to
maintain and enhance the good business reputation of PureDepth, also
to
the best of his/her ability.
|
| 1.4 |
The
executive will, during the period of this
agreement:
|
| a. |
diligently
and faithfully serve PureDepth and use his/her best endeavors to
promote
and protect the interests of PureDepth and any other related company
(as
that term is commonly understood);
|
| b. |
carry
out the Duties in a manner consistent with achieving PureDepth’s
objectives and milestones, as determined by the board of directors
of
PureDepth from time to time; and
|
| c. |
comply
with all of PureDepth’s policies, rules and regulations in force from time
to time.
|
Remuneration
| 1.5 |
The
executive’s salary, any other benefits and additional terms are recorded
in the Details
of Remuneration, Terms and Additional Terms
schedule attached to this agreement (“the
schedule”).
|
Commencement
| 1.6 |
This
agreement will be deemed to have commenced on 1
April 2005
and will continue in full force and effect until terminated earlier
by
operation of law or otherwise in accordance with the terms of this
agreement.
|
Service
| 1.7 |
PureDepth
recognizes your existing service with Deep Video imaging Limited
as if it
was service with PureDepth for all service related entitlements,
if
any.
|
2.
Hours
of Work
| 2.1 |
The
normal hours of work are 8.30 to 5.30 Monday to
Friday.
|
| 2.2 |
The
executive’s remuneration recognizes that the executive will work
additional hours from time to time in accordance with the needs of
the
executive’s position and the
Business.
|
3.
Expenses
| 3.1 |
During
the term of this agreement, the executive will be reimbursed for
all
reasonable and approved expenses and disbursements, which are incurred
in
connection with the performance of the Duties. Expenses and disbursements
are to be properly accounted for by the executive and detailed GST
or
other sales tax invoices or receipts are to be provided with the
amount of
the expenses or disbursements included within the GST or other sales
tax
invoice provided by the executive for his/her commissions and
bonuses.
|
2
|
Xxxxxxx
Xxxxxx
|
4. Consent
To Deductions
| 4.1 |
The
executive consents, pursuant to section 5 of the Wages Protection
Xxx
0000, to the deduction from any remuneration or other moneys owing
to the
executive on termination of employment, any sum which may be owed
by the
executive to PureDepth.
|
5.
Taxes
| 5.1 |
“Taxes”
means and includes any New Zealand taxes or duties such as withholding
taxes and levies, PAYE for its employees, ACC levies, GST registration,
and GST returns and the provision of any other
taxes.
|
| 5.2 |
If,
at any time, PureDepth considers, in its sole and absolute discretion,
and
whether as a matter of law or change of circumstances, it is obliged
to
deduct any Taxes, then it is agreed that it will be entitled to do
so and
will notify the executive in writing as soon as practicably possible
after
making such deductions.
|
6.
Annual
Leave
| 6.1 |
The
executive is entitled to 5
weeks annual leave per annum paid at average earnings. Annual leave
accrues proportionately throughout each
year.
|
| 6.2 |
Subject
to the consent of PureDepth, the executive may take the his/her annual
leave at such times as the executive wishes as long as this complies
with
statutory requirements and does not unduly disrupt the
Business.
|
| 6.3 |
The
entitlements within this agreement, including other leave and holiday
provisions, are inclusive of and not additional to the entitlements
within
the Holidays Xxx 0000.
|
7.
Public
Holidays
| 7.1 |
Subject
to any requirement to work, the statutory holidays applying in the
executive’s home state in the USA or New Zealand (as applicable) will be
holidays on pay at the executive’s ordinary rate, where they fall on days
that would otherwise be working days for the
executive.
|
| 7.2 |
The
executive may be required to work on public holidays in particular
circumstances, such as promotions. Any requirement to work will be
notified to the executive by
PureDepth.
|
| 7.3 |
Where
the executive is required to work on a statutory holiday, then, in
addition to receiving time and a half for the hours worked on that
day,
the executive will receive alternative holiday paid at the executive’s
salary rates which will be taken at a date convenient to
PureDepth.
|
3
|
Xxxxxxx
Xxxxxx
|
8.
Sick
Leave
| 8.1 |
After
working for PureDepth for 6
months, the executive will be entitled to sick leave of 10
days in each subsequent 12
month period of employment. Up to 15
days of unused sick leave may be transferred from year to year up
to a
maximum entitlement of 20
days.
|
| 8.2 |
Sick
leave under this clause may be taken only
when:
|
| a. |
the
executive is sick;
|
| b. |
the
executive’s spouse or partner is sick (domestic leave);
or
|
| c. |
the
executive’s dependant child or parent is
sick.
|
| 8.3 |
The
executive should give PureDepth as much notice of the executive’s
intention to take sick leave as
possible.
|
| 8.4 |
Where
leave is taken because of sickness, the executive may be asked to
produce
a medical certificate after 3
days.
|
| 8.5 |
Where
the executive has long term or frequent leave because of sickness,
PureDepth may require the executive to undergo a medical examination
or
assessment, at PureDepth’s expense, by a registered medical practitioner
or specialist nominated by PureDepth and to furnish a report of such
visit
to PureDepth.
|
| 8.6 |
PureDepth
may provide additional sick leave consistent with PureDepth’s policies and
practices or otherwise at the discretion of the board of directors
of
PureDepth.
|
9.
Bereavement
Leave
| 9.1 |
The
executive may take up to 3
days bereavement leave on the death of a family member, including
grandparents and grandchildren.
|
| 9.2 |
If
multiple deaths occur at the same time the executive may take 3
days for each person.
|
| 9.3 |
The
executive may take 1
day for any other person PureDepth agrees the executive may take
bereavement leave in relation to.
|
10.
Parental
Leave
| 10.1 |
The
executive will be entitled to parental leave in accordance with the
Parental Leave and Employment Protection Xxx
0000.
|
11.
Inventions
| 11.1 |
Any
and all inventions, discoveries, developments and innovations in
relation
to PureDepth business concepts conceived by the executive during
the term
of this agreement relative to the Duties will be the absolute and
exclusive property of PureDepth. The executive by entering into this
agreement assigns all his/her right, title, and interest in the same
to
PureDepth. Any and all inventions, discoveries, developments and
innovations conceived, made or undertaken by the executive prior
to the
term of this agreement and utilised by the executive in rendering
Duties
to PureDepth are by the executive’s entry into this agreement licensed to
PureDepth for use in its operations and for an infinite duration.
This
license is non-exclusive, and may be assigned without the executive’s
prior written approval by PureDepth to a wholly-owned subsidiary
of
PureDepth.
|
4
|
Xxxxxxx
Xxxxxx
|
12.
Confidentiality
| 12.1 |
The
executive acknowledges that, during the term of this agreement, he/she
will have access to and become acquainted with various trade secrets,
inventions, innovations, processes, information, records and
specifications owned or licensed by PureDepth and/or used by PureDepth
in
connection with the operation of the Business including, without
limitation, the Business’ product processes, methods, customer lists,
accounts and procedures (“Confidential Information”). The executive agrees
that he/she will not disclose any Confidential Information, directly
or
indirectly, or use any of Confidential Information in any manner,
either
during the term of this agreement or at any time after the termination
of
this agreement (for whatever reason) except as required in the course
of
this agreement with PureDepth. All files, records, documents, blueprints,
specifications, information, letters, notes, media lists, original
artwork, creative work, programming code, notebooks, and similar
items
relating to the Business, whether prepared by the executive or otherwise
coming into its possession, will also comprise Confidential Information
and will accordingly be the absolute and exclusive property of PureDepth.
The executive will not retain any copies of any Confidential Information
without PureDepth’s prior written permission. Upon the expiration or
earlier termination of this agreement, or whenever requested by PureDepth,
the executive will immediately deliver to PureDepth all such Confidential
Information in his/her possession or under his/her control. The executive
further agrees that he/she will not disclose the terms of this agreement
to any person, unless, prior to such disclosure and confirmed in
writing
for the benefit of PureDepth, the relevant person or entity has agreed
to
confidentiality on the same terms, without the prior written consent
of
PureDepth and will at all times preserve the confidential nature
of
his/her relationship with
PureDepth.
|
13.
Conflicts
Of Interest; Non-Competition
| 13.1 |
The
executive represents and warrants, for the benefit of PureDepth,
that
he/she has the authority and capacity and is free to enter into this
agreement, and that this agreement does not violate the terms of
any
agreement between the executive and any third party. Further, the
executive, in rendering the Duties will not utilize any invention,
discovery, development, improvement, innovation, or trade secret
in which
he/she does not have a proprietary
interest.
|
| 13.2 |
The
executive will not at any time during the term of the agreement or
for a
period of 6
months after termination or expiration of the agreement be directly
or
indirectly interested, engaged or concerned in, or assist financially
or
provide management duties to, any business directly the same as PureDepth
or the Business (i.e., operating in the multi-level display screen
business), whether on his/her own account or as a consultant to or
a
partner, agent, trustee, employee, shareholder, member or director
of any
other person, or as beneficiary under a trust, or in any other way
whatsoever, without the prior written consent of
PureDepth.
|
5
|
Xxxxxxx
Xxxxxx
|
| 13.3 |
For
a period of 6
months following termination of this agreement, the executive will
not,
directly or indirectly hire, solicit, or encourage to leave PureDepth’s
employment, any employee, consultant, or contractor of PureDepth
or hire
any such employee, consultant, or contractor who has left PureDepth’s
employment or contractual agreement, without the prior written consent
of
PureDepth.
|
14.
Right
To Injunction
| 14.1 |
The
parties to this agreement acknowledge that the Duties to be rendered
by
the executive and the rights and privileges granted to PureDepth
under the
agreement are of a special, unique, unusual, and extraordinary character
which gives them a peculiar value, the loss of which cannot be reasonably
or adequately compensated by damages in any action at law, and the
breach
by the executive of any of the provisions of this agreement will
cause
PureDepth irreparable injury and damage. the executive expressly
agrees
that PureDepth will be entitled to injunctive and other equitable
relief
in the event of, or to prevent a breach of any provision of this
agreement
by the executive. Resort to such equitable relief, however, will
not be
construed to be a waiver of any other rights or remedies that PureDepth
may have for damages or otherwise. The various rights and remedies
of
PureDepth under this agreement or otherwise will be construed to
be
cumulative, and no one of them will be exclusive of any other or
of any
right or remedy allowed by law.
|
15.
Legislation
| 15.1 |
The
executive is required to be familiar with, remain up to date and
take
appropriate steps to ensure compliance with PureDepth’s statutory
obligations and all such related, amending or replacement legislation,
regulations and rules.
|
| 15.2 |
The
executive is responsible for his/her own and PureDepth’s compliance with
all legislation, including becoming familiar with any existing policies
and procedures, ensuring that existing policies and procedures comply
with
all relevant legislation and ensure that policies and procedures
are kept
up to date with legislative change.
|
16.
Merger
| 16.1 |
This
agreement shall not be terminated by the merger or consolidation
of
PureDepth into or with any other
entity.
|
17.
Termination
| 17.1 |
The
parties may terminate this agreement by giving not less than the
notice
set out in the schedule. PureDepth may terminate without notice or
payment
in lieu of notice for misconduct or poor performance or any other
justifiable reason.
|
6
|
Xxxxxxx
Xxxxxx
|
| 17.2 |
PureDepth
reserves the right to pay out the executive’s notice period at base salary
instead of the executive working out the executive’s
notice.
|
| 17.3 |
If
the executive give less than the proper notice, PureDepth is entitled
to
deduct the balance of unworked notice from any money owed to the
executive
or to otherwise recover the sum without affecting any other rights
that
PureDepth has arising from the executive’s failure to give
notice.
|
| 17.4 |
During
the notice period, PureDepth may require the executive to cease some
or
all of the executive’ Duties and to substitute others in their
place.
|
| 17.5 |
Upon
termination of this agreement, the executive will immediately return
to
PureDepth all books, papers, records, documents, motor vehicles,
products,
keys and access or security cards and any other items of PureDepth’s
property, including Confidential Information, which the executive
has in
the executive’s possession or use.
|
Summary
Dismissal
| 17.6 |
Notwithstanding
anything within clauses 17.1 to 17.4, where PureDepth considers that
there
has been gross negligence, serious incompatibility between the executive
and the Executive Chairman or the board of directors of PureDepth
from
time to time, misconduct of a serious nature or any breach of trust
and
confidence, or if the executive’ is convicted of any crime or offence of a
materially serious nature (i.e., not a mere misdemeanor); fails or
refuses
to comply with the written policies or reasonable directive of PureDepth;
the executive materially breaches provisions of this agreement; or
a
petition for the bankruptcy of the executive is presented or actually
effected then PureDepth, at any time, may terminate this agreement
immediately and without prior written notice to the
executive.
|
Incapacitation
| 17.7 |
PureDepth
may terminate the executive’s employment upon giving the notice required
under clause 17.1 if:
|
| a. |
The
executive suffers an illness or injury that would incapacitate the
executive from carrying out the Duties for a period of time that
the board
of directors of PureDepth considers to be unreasonable in relation
to the
circumstances of the Business at that time,
or
|
| b. |
the
executive is incapacitated at different times for more than 60
working days during any one 12-month
period.
|
| 17.8 |
The
provisions of clause 17.1 do not affect the undertakings and covenants
given by the executive in clauses 11,12 and 13 of this agreement
which are
intended to survive termination of this agreement and shall continue
to
bind the executive accordingly.
|
7
|
Xxxxxxx
Xxxxxx
|
Restructuring
Definition
of Redundancy
| 17.9 |
Redundancy
is a situation where the position of employment of an executive is
or will
become surplus to the requirements of PureDepth’s business because of a
restructuring, reorganization or a decision is made not to conduct
work of
that type or for some other reason.
|
Normal
Redundancy Process
| 17.10 |
In
the event that PureDepth considers that the executive’s position of
employment could be affected by redundancy or could be made redundant,
PureDepth shall, except in exceptional circumstances, consult with
the
executive regarding the possibility of redundancy and, before a decision
to proceed with redundancy is made, whether there are any alternatives
to
dismissal (such as redeployment to another role). In the course of
this
consultation PureDepth shall provide to the executive sufficient
information to enable understanding and meaningful consultation,
and shall
consider the views of the executive with an open mind before making
a
decision as to whether to make the executive’s position of employment
redundant. Nothing in this clause limits the legal rights and obligations
of the parties.
|
No
Redundancy Compensation Payable
| 17.11 |
In
the event that the executive’s employment is terminated on the basis of
redundancy, the executive shall be entitled to notice, but shall
not be
entitled to any additional payment, whether by way of redundancy
compensation or otherwise.
|
Restructuring
| 17.12 |
A
redundancy may also occur where PureDepth’s business is restructured.
Restructuring means a situation where PureDepth enters into a contract
or
arrangement under which PureDepth’s business (or part of it) is undertaken
by another person or PureDepth’s business (or part of it) is sold or
transferred. It does not include the termination of a contract or
arrangement under which PureDepth carries out work for another party,
a
sale of shares or any arrangements or contracts entered into if PureDepth
is in receivership or liquidation.
|
| 17.13 |
The
executive will be affected by a restructuring if he or she is, or
will be,
no longer required by PureDepth to perform his or her work and the
type of
work that the executive does (or work that is substantially similar)
is,
or is to be, performed by employees of the new employer. A new employer
means the person who undertakes, or proposes to undertake, PureDepth’s
business (or part of it) for the employer or to whom PureDepth’s business
(or part of it) is, or is to be, sold or
transferred.
|
| 17.14 |
Negotiations
with a new employer in relation to a restructuring will include discussion
related to the following items:
|
8
|
Executive
Employment Agreement
|
Xxxxxxx
Xxxxxx
|
| a. |
The
affected employees, their positions, accrued entitlements and terms
and
conditions, which the employee authorizes the employer to
release;
|
| b. |
Whether
the negotiations are confidential or commercially
sensitive;
|
| c. |
Taking
into account confidentiality and commercial sensitivity, the information
that will be given to affected employees and when that will
occur;
|
| d. |
Whether
the new employer is prepared to negotiate a transfer of affected
employees’ employment, and if so whether the transfer will be on the same
terms and conditions of employment or on other terms and conditions
of
employment;
|
| e. |
Whether
the transfer will recognize service related
benefits;
|
| f. |
Whether
the transfer will include the transfer of accrued benefits and if
so, what
benefits will be transferred;
|
| g. |
Whether
the new employer will have access to the affected employees and when
will
that occur; and
|
| h. |
Whether
the affected employees will have access to the new employer and when
will
that occur.
|
| 17.15 |
If
PureDepth is able to negotiate a transfer of the executive’s employment
the executive may choose whether or not to transfer to the new
employer.
|
| 17.16 |
If
the executive chooses to transfer to the new employer no redundancy
compensation is payable and the notice period will not apply. If
the
transfer of the executive’s employment is to include a transfer of the
executive’s accrued benefits, or some of them, the executive agrees that
PureDepth may transfer any or all of his or her accrued entitlements
to
the new employer.
|
| 17.17 |
If
PureDepth is unable to negotiate a transfer or PureDepth is able
to
negotiate a transfer but the executive chooses not to transfer
PureDepth
will consider whether there are any alternative positions available
within
PureDepth that may be suitable for the executive’s skills, experience,
qualification and attributes.
|
| 17.18 |
If
PureDepth is unable to identify an alternative position or the executive
elects not to apply for or accept any alternative position the executive
will not be entitled to any redundancy compensation but will be entitled
to receive the notice period from the time that the executive is
informed
that his or her position will become redundant, including becoming
redundant subject to the completion of the
restructuring.
|
18.
Loyalty
Bonus
| 18.1 |
PureDepth
wishes to retain its key employees for a minimum period of 12
months while it is in the process of preparing the business for strategic
and substantial investment or possibly sale as a going concern. The
shareholders and directors of PureDepth have formed the view that
for the
business of PureDepth to grow exponentially, it requires the investment
of
a party or parties that have the resources to substantially grow
the
business by partnership with key industry players or independent
investment in the markets that are capable of being high users of
the
products PureDepth produces.
|
9
|
Executive
Employment Agreement
|
Xxxxxxx
Xxxxxx
|
| 18.2 |
In
this clause:
|
| a. |
the
“PureDepth Group” means the parent company of PureDepth, any subsidiary of
PureDepth and any related companies of PureDepth as defined by the
Companies Xxx 0000;
|
| b. |
“base
salary” means the remuneration component defined as salary excluding any
commissions, bonuses, any other variable remuneration, benefits of
any
type and any other payments of any type or
consideration;
|
| c. |
“transfer
of business” means:
|
| i. |
the
sale of the whole of or more than 50% of the operative business of
the
PureDepth Group, other than by the sale of shares;
or
|
| ii. |
the
change in the effective control of the PureDepth Group by the sale
of more
than 50% of the shares in the PureDepth
Group.
|
| 18.3 |
Where
the executive remains:
|
| a. |
in
continuous employment with PureDepth for a minimum of 12 months from
1
April 2005; and/or
|
| b. |
in
continuous employment with PureDepth at the completion of the transfer
of
business; and/or
|
| c. |
is
made redundant due to a decision on the part of PureDepth to cease
trading; PureDepth will provide the greater of
either:
|
| d. |
4
months base salary; or
|
| e. |
any
payments, benefits or the net value of the “New Incentive Scheme”, that
replaces the Deep Video Imaging Limited Executive
Share Option Plan No. 3,
that the executive is entitled to as a result of or in any way related
to
the transfer of business.
|
| 18.4 |
The
entitlement of the executive to the greater of the two benefits under
either 18.34 or 18.3e disentitles the executive to payment of the
lesser
benefit. The executive relinquishes any right to the lesser
benefit.
|
| 18.5 |
If
because of the circumstances of any transfer of business the Employee
becomes entitled to the benefit of 18.3e prior to completion, the
Employee
may elect to waive that entitlement prior to completion in favour
of the
entitlement in 18.34 payable on
completion.
|
10
|
Executive
Employment Agreement
|
Xxxxxxx
Xxxxxx
|
| 18.6 |
Clauses
18.1 to 18.4 do not affect any notice or payment in lieu of notice
that
the Employee may be entitled to as a result of the transfer of
business.
|
19.
Medical
Insurance
| 19.1 |
PureDepth
will provide the executive with the medical insurance cover up to
the
maximum amount per month specified in the
schedule.
|
20.
Governing
Law
| 20.1 |
The
laws of New Zealand will govern this agreement and, subject to the
settlement of disputes as set out in the is agreement, both parties
irrevocably submit to the exclusive jurisdiction of the Courts of
New
Zealand for any matter arising under or touching this
agreement.
|
21.
Employment
Relations Problems
| 21.1 |
Employment
relationship problems are any problems relating to or arising out
of an
employment relationship. These can include personal grievances (such
as
unjustifiable dismissal, unjustifiable action resulting in a disadvantage,
discrimination, sexual or racial harassment and duress), disputes
about
the existing terms and conditions of the executive’s employment,
withholding or failing to pay wages or salary or any other money,
failing
to comply with the terms of the executive’s employment agreement but
excludes the fixing of new terms and
conditions.
|
| 21.2 |
The
best means of resolving any employment relationship problem is to
bring it
to PureDepth’s attention at the earliest
opportunity.
|
Personal
Grievances
| 21.3 |
If
the executive has a personal grievance, he must raise this with PureDepth,
including telling PureDepth that he or she wants something to be
done
about it. The executive must do this within 90
days of the action that caused it. This time limit is imposed under
the
Employment Relations Xxx 0000 (New Zealand). If the executive fails
to
raise the grievance within 90
days he or she will have to apply to the Employment Relations Authority
(New Zealand) for permission to raise the
grievance.
|
| 21.4 |
PureDepth
will acknowledge that the executive has raised a personal grievance
and
discuss it with him in an attempt to resolve the
problem.
|
Employment
Relations Services
| 21.5 |
Mediation—
If the
problem is not resolved, either party may ask the Department of Labour’s
Mediation Service (New Zealand) to mediate. The mediators can operate
informally by meeting the parties separately or together, or through
a
series of different meetings and if asked by all parties, mediators can
make a decision for the parties.
|
11
|
Executive
Employment Agreement
|
Xxxxxxx
Xxxxxx
|
| 21.6 |
Investigation
-
Either party may apply to the Employment Relations Authority, which
can
investigate and make a decision about any employment relationship
problem.
|
| 21.7 |
Employment
Court
-
Either party that is not satisfied with the Employment Relations
Authority’s findings, may ask for the matter to be heard from the
beginning, in whole or in part, by the Employment Court (New
Zealand)
|
22.
Waiver
| 22.1 |
Waiver
by one party to this agreement of breach of any provision of this
agreement by the other will not operate or be construed as a continuing
waiver.
|
23.
Notices
| 23.1 |
Any
notice produced under this agreement will be in writing addressed
to the
other party according to the most recent details designated by each
party
in writing to the other.
|
| 23.2 |
Delivery
may be effected by hand, fastpost or airmail (with postal prepaid),
facsimile or email.
|
| 23.3 |
Any
notice given under this agreement will be deemed to have been
received:
|
| a. |
at
the time of delivery, if delivered by
hand;
|
| b. |
on
the 10th
day after the date of mailing, if sent by fastpost or airmail with
the
postal prepaid;
|
| c. |
on
the day on which the transmission is sent, if sent by facsimile.
If there
is any dispute or difference between any of the parties over the
fact of
transmission in any particular case, production by the sender of
a
confirmation of clear transmission will be conclusive evidence of
transmission and will bind the parties accordingly;
and
|
| d. |
in
the case of an email, upon the earlier
of:
|
| i. |
receipt
by the sending party of confirmation of successful delivery;
or
|
| ii. |
2
days after despatch, provided that the sending party does not receive
any
indication of failure, or delay of delivery within 2 days after
despatch.
|
|
For
the purposes of this clause, “despatch”
occurs when the relevant email first leaves the sending party’s network
for delivery to the receiving party’s
network.
|
12
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Executive
Employment Agreement
|
Xxxxxxx
Xxxxxx
|
24.
Modification
Or Amendment
| 24.1 |
No
amendment, change or modification of this agreement will be valid
unless
in writing and signed by both
parties.
|
25.
Entire
Understanding
| 25.1 |
This
agreement together with the attached schedule and position description
constitutes the entire understanding and agreement between both parties,
and any and all prior agreements, understandings, and representations
are
terminated and cancelled in their entirety and are of no further
force and
effect.
|
26.
Unenforceability
Of Provisions
| 26.1 |
If
any provision of this agreement, or any portion of the agreement,
is held
to be invalid and unenforceable, then the remainder of this agreement
shall nevertheless remain in full force and
effect.
|
27.
Partial
Invalidity
| 27.1 |
The
illegality, invalidity or unenforceability of any provision of this
agreement will not affect the legality, validity or enforceability
of any
other provision.
|
28.
Counterparts
| 28.1 |
This
agreement may be executed in counterparts, all of which together
will
constitute one and the same instrument. Either party may execute
this
agreement by signing such counterpart. Any such counterpart may be
provided to the other party by PDF attached to an email or facsimile
transmission with the intent that receipt by a party of a PDF attached
to
an email or facsimile of any executed copy will be as binding and
effective as receipt of the
original.
|
| 28.2 |
Transmission
by PDF attached to an email or facsimile by any party (“Transmitting
Party”)
to any other party (“Receiving
Party”)
of a copy of this agreement which, prior to transmission, has been
executed by the Transmitting Party will be deemed to be delivery
to the
Receiving Party of the original so executed. The Receiving Party
may in
any court of law, arbitration or other proceedings relating to this
agreement produce or exhibit that PDF attached to an email or facsimile
copy as if it were the original as evidence of its contents and execution
by the Transmitting Party and no party may object to that copy being
so
produced or exhibited and used as such evidence. The Transmitting
Party
will deliver the original copy of this agreement executed by that
party to
the Receiving Party by courier following the transmission of the
PDF
attached to an email or facsimile copy as provided
above.
|
29.
Independent
Advice
| 29.1 |
The
executive acknowledges she is entitled to seek independent advice
about
this proposed employment agreement.
|
13
|
Executive
Employment Agreement
|
Xxxxxxx
Xxxxxx
|
SIGNED
by both
parties.
I
confirm
that, in accordance with clause 29 above, I have been given the opportunity
to
obtain independent advice and agree to the terms of this agreement:
14
|
Executive
Employment Agreement
|
Xxxxxxx
Xxxxxx
|
| Signed by the executive in the presence of: | ||
| Xxxxxxx Xxxxxx | ||
| Signature of witness | ||
| Name of witness | ||
| Occupation | ||
| Address | ||
| Signed by PureDepth Incorporated Limited: | ||
| Director’s signature | ||
| Director’s full name |
15
SCHEDULE
Details
of Remuneration, Terms and Additional Terms
Remuneration
clause 1.5
Base
Salary:
NZ$175,000 per annum.
Mobile
telephone:
For
business use.
Internet
connection:
For home
access to PureDepth’s server.
|
Bonus
Programme:
On
the achievement of PureDepth’s quarterly gross profit dollar target, as
approved by the Board, the executive will be paid a quarterly bonus
equivalent to NZ$25,000
per annum. PureDepth will also work up a programme for further financial
reward to the executive if PureDepth exceeds its gross profit
target.
|
|
Option:
3.25% of outstanding shares in PureDepth as at 31 March 2005 as part
of
the “New Incentive Scheme”
(undiluted).
|
Terms
Notice
- clause 17.1:
3
months.
Medical
Insurance Cover- clause 19:
Up to an
allowance of NZ$150
per
month.
Additional
Terms
New
Incentive Scheme:
|
The
“New Incentive Scheme” to be provided by PureDepth, that is to replace the
Deep Video Imaging Limited Executive
Share Option Plan No. 3
(“the Plan”), forms part of this employment agreement. Once the New
Incentive Scheme comes into force PureDepth may vary the New Incentive
Scheme as long as the benefits of the New Incentive Scheme are no
less
favorable to the executive than the benefits of the
plan.
|
16
