EXHIBIT 10.11
CONTRACT OF EMPLOYMENT
THIS AGREEMENT is made the 14th day of March 1998
BETWEEN:
(1) EUROPEAN MICRO PLC (registered number 2663964) having its registered
office at Market Court, 00-00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx XX00
0XX (the "COMPANY")
(2) XXXXXXXX XXXXXXX of 00-00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx XX00 0XX
(the"EXECUTIVE")
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement the following words and expressions shall have
the following meanings:
"the Board" means the Board of Directors of the
Company and includes any committee
of the Board duly convened by it
"the Commencement Date" means the 1st day of January 1998
"EM Group Company" means the Company and any Company
which is a subsidiary or affiliate
of the Company
"the Employment" means the employment established by
this Agreement
"Intellectual Property" means (i) every invention discovery
design or improvement (ii) every work
in which copyright may subsist, and
(iii) moral rights as defined by s 77
and s 80 of the Copyright Design and
Patents Xxx 0000.
"the Termination Date" means the termination date of the
Employment under this Agreement
howsoever terminated.
1.2. The headings in this Agreement shall not affect its
interpretation or construction.
1.3. Any reference in this Agreement to any statutory provision
includes any statutory modification or re-enactment of it or
the provision referred to.
2. EMPLOYMENT
The Company shall employ the Executive and the Executive agrees to act as
Managing Director of the Company on the terms set out in this Agreement.
3. FREEDOM TO TAKE UP THE APPOINTMENT
The Executive warrants that by virtue of entering into this Agreement he will
not be in breach of any express or implied terms of any contract or of any other
obligation binding upon him.
4. PERIOD
The Executive's Employment shall commence with effect from the Commencement Date
and shall (subject as hereinafter provided) be for an initial fixed term of one
(1) year and shall continue thereafter until terminated by either party giving
to the other not less than six (6) months' written notice to expire on or any
time after the expiry date for the initial fixed term.
5. DUTIES OF THE APPOINTMENT
5.1. The Executive shall faithfully and diligently perform those
duties of his appointment and exercise such powers consistent
with them which are from time to time assigned to or vested in
him and shall use his best endeavours to promote the interests
of the Company and any EM Group Company for which he is
required to perform duties.
5.2. The Executive shall (without further remuneration) if and for
so long as the Executive is so required by the Company:
(i) carry out the duties of his appointment on behalf of any
EM Group Company
(ii) act as a director of any EM Group Company or hold any
other appointment or office as nominee or
representative of the Company or any EM Group Company
(iii) carry out such duties and the duties attendant on any
such appointment as if they were duties to be
performed by him on behalf of the Company.
6. OBEDIENCE AND REPORTING
The Executive shall obey all lawful and reasonable directions of the Board and
at all times keep the Board promptly and fully informed (in writing if so
requested) of his conduct of the business or affairs of the Company and any EM
Group Company and provide such explanations as the Board may require.
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7. DEVOTION TO DUTIES
7.1. The Executive shall during the term of this Employment devote
the whole of his time, attention and abilities to the business
and affairs of the Company unless prevented by ill health from
so doing and shall not during the Employment either on his own
account or as the employer of others or otherwise be engaged
or concerned in any business other than that of the Company or
any EM Group Company or accept any other engagement or public
office except with the prior consent in writing of the Company
but the Executive may nevertheless be or become a minority
holder of any securities which are quoted on a recognized
investment exchange.
7.2. The Executive shall not be prevented from having any
shareholding in a company which exists at the date of this
Contract.
7.3. The Executive will be allowed to become a Shareholder in a
company which does not directly or indirectly compete with the
Company or any EM Group Company provided that consent is first
obtained from the Company in writing such consent not to be
unreasonably withheld.
8. COMPLIANCE/DEALINGS IN "SECURITIES"
The Executive shall during his Employment and for twelve (12) months after the
termination of his Employment comply and shall procure that his minor children
shall comply with all applicable rules of law, any recognized investment
exchange regulations including the "Model Code for Securities Transactions by
Directors of Listed Companies' issued by the International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited and any Company policy issued
in relation to dealings in shares, debentures or other securities of the Company
and any EM Group Company or any unpublished price sensitive information
affecting the securities of any other company.
9. PLACE OF WORK
9.1. The Executive shall initially work at the offices of the
Company at Market Court, 00-00 Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx XX00 0XX but the Executive shall if required to do so
work in such place or places within a twenty (20) mile radius
of Altrincham as the Board may reasonably require for the
proper performance of his duties hereunder.
9.2. The Executive shall not be required (except for travel on the
business of the Company or any EM Group Company) to reside in
other parts of the world.
10. HOURS OF WORK
There are no normal fixed working hours for the Employment. The Executive is
expected to work at such times as the efficient and conscientious discharge of
his duties hereunder requires.
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11. REMUNERATION
11.1. During the Employment the Executive shall receive as
remuneration a basic salary at the rate of /pound sterling/
60,000 per annum to be paid by equal monthly installments on
the last day of each calendar month. Any increase in
remuneration shall be notified in writing to the Executive
and the details thereof shall be entered in the table in
Schedule 1 to the Company's signed copy of this Agreement and
initialed by an officer of the Company.
11.2. The remuneration shall unless otherwise by agreed in writing
by the Company be inclusive of any fees or other remuneration
which the Executive would otherwise be entitled to receive
from the Company or any EM Group Company in connection with
the performance of the duties delegated to him under this
Agreement (subject to Clause 11.3 hereof).
11.3. During the Employment the Executive will also receive a bonus
calculated in accordance with Schedule 3.
12. CAR
12.1. The Company shall make available to the Executive for his use
in performing his duties (and shall replace from time to time
as necessary) a motor vehicle in keeping with the Executive's
position. The Company shall maintain service tax and
comprehensively insure the car as appropriate and shall bear
all running expenses of the car including fuel consumed during
private use of the car. The Executive shall ensure that he has
at all times a current valid license to drive private motor
cars.
12.2. Immediately upon the termination of the Employment howsoever
arising, the Executive shall return the car and its keys to
the Company at its principal place of business (or any other
place nominated by the Company for its return).
13. EXPENSES
In addition to his basic salary hereunder the Executive shall be reimbursed the
amount of all reasonable traveling, hotel, entertainment and other expenses
properly and necessarily incurred and defrayed by him in the discharge of his
duties hereunder (including "professional fees"). The Executive shall produce to
the Company at its request all supporting vouchers and documents in respect of
such expenses. The Company will also pay any telephone expenses incurred by the
Executive in relation to this Contract of Employment upon production of
supporting bills in respect of such expenses.
14. PENSION AND OTHER BENEFITS
No pension contributions shall be paid by the Company on behalf of the
Executive. The Executive will however be entitled to private health insurance
for the benefit of himself and his two daughters during the term of this
Agreement.
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15. HOLIDAYS
15.1. The Executive shall be entitled (in addition to normal bank
and other public holidays) to twenty (20) days paid holiday in
each calendar year at such times as shall be convenient to the
Company and such additional holidays as the Board shall
approve.
15.2. The Executive shall not be entitled to carry forward any
unused holiday entitlement from one holiday year to the next
without the written consent of the Company.
16. SICKNESS OR INJURY
16.1. The Executive agrees that at any time during the course of the
Employment he shall at the request of the Company submit
himself to a medical examination by a registered medical
practitioner nominated by the Company. The purpose of such
medical examination shall be to determine whether there are
any matters which might impair the Executive's ability to
perform his duties under this Agreement and accordingly the
Executive shall give such authority as is required for the
Company's nominated doctor to disclose to the Company the
findings. All expenses associated with obtaining the report
will be borne by the Company.
16.2. In the event that the Executive is unable to perform his
duties under this Agreement by reason of sickness or injury
for a period of seven (7) days or more, the Executive shall if
required to do so by the Company provide the Company with a
medical certificate in respect of the whole period of the
absence. Immediately following his return from any period of
absence the Executive shall complete a self-certification form
detailing the reason for the absence.
16.3. During the Executive's first ten (10) weeks of absence he will
receive ninety percent (90%) of his average weekly earnings
calculated by taking the total of his earnings over the
previous twelve months and dividing the same by fifty two
(52). At the end of such ten (10) week period any further
payment will only be made to the Executive at the discretion
of the Board.
16.4. The Company shall have the right to deduct from the
remuneration paid to the Executive any statutory sick pay or
other social security benefits which he is entitled to claim
in consequence of sickness or accident or payable to him under
any scheme for the time being in force of which by virtue of
his employment by the Company he is a non-contributory member.
16.5. In the event that the Executive is incapable of performing
his duties by reason of injury sustained wholly or partially
as a result of actionable negligence or breach of any
statutory duty on the part of any third party all payments
made to the Executive by the Company by way of remuneration
shall to the extent that compensation is recoverable from that
third party constitute loans by the Company to the Executive
(notwithstanding that as an interim measure income tax has
been
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deducted from payments as if they were emoluments of
employment) and shall be repaid when and to the extent that
the Executive recovers compensation for loss of earnings from
that third party by action or otherwise.
16.6. The Company will maintain on behalf of the Executive the
permanent health insurance scheme currently in place during
the term of this Agreement.
17. CONFIDENTIALITY
The Executive shall not, either during the Employment, otherwise than in the
proper course of his duties, or thereafter, without the consent in writing of
the Company being first obtained, use directly or indirectly, divulge to any
person, firm or company and shall during the continuance of the Employment use
his best endeavours to prevent the publication, disclosure or non-authorized use
of any confidential information of the Company or any EM Group Company or any of
its or their secrets, dealings or transactions whatsoever which may have come or
may come to his knowledge during his Employment or previously or otherwise and
which include but are not limited to the following matters:
(i) the working of any manufacturing process or invention
or any other methods, formulae, technical data and
know-how used by or which relate to the business of
the Company or any EM Group Company;
(ii) lists of customers and potential customers or of
suppliers and potential suppliers to the Company and
any EM Group Company and any other information
collected by the Company and any EM Group Company in
relation to those customers or suppliers;
(iii) the dealings or transactions or other business
affairs of the Company or any EM Group Company and
its or their finances or management accounts.
The restriction shall cease to apply to information or knowledge which may
(otherwise than by reason of the default of the Executive ) become available to
the public generally without requiring a significant expenditure of labour,
skill or money.
18. INTELLECTUAL PROPERTY
18.1. The Executive shall forthwith communicate to the Company in
confidence all intellectual property which the Executive may
make or originate either solely or jointly with another or
others during the Employment (hereinafter referred to as
"Intellectual Property").
18.2. In the case of such Intellectual Property as is made or
originated hereunder wholly or substantially in the course of
his normal duties or in the course of duties specifically
assigned to him and which relate to the affairs of the Company
or any EM Group Company the following subclauses of this
clause shall apply.
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18.3. Such Intellectual Property (or in the case of the Intellectual
Property made or originated by the Executive jointly with
another or others to the full extent of the Executive's
interest therein so far as the law allows) shall be and become
the exclusive property of the Company and shall not be
disclosed to any other person, firm or company without the
consent of the Company being previously obtained which if
given may be subject to conditions. The provisions of this
subclause shall not entitle the Executive to any compensation
beyond the salary hereinafter mentioned except that in the
case of any invention on which a British Patent has been
granted or assigned to the Company and the Company has derived
outstanding benefit from such patent, the Executive may be
entitled by virtue of s 40 of the Patents Xxx 0000.
18.4. The Executive shall if and when required by the Company and at
the expense of the Company do and/or combine with others in
doing all acts and sign and execute all applications and other
documents (including Powers of Attorney in favour of nominees
of the Company) necessary or incidental to obtaining,
maintaining or extending patent or other forms of protection
for such Intellectual Property in the UK and in any other part
of the world or for transferring to or vesting in the Company
or its nominees the Executive's entire right, title and
interest to and in such Intellectual Property or to and in any
application, patent or other form of protection to copyright
as the case may be including the right to file applications in
the name of the Company or its nominees for patent or other
forms of protection or for registration of copyright in any
country claiming priority from the date of filing of any
application or other date from which priority may run in any
other country.
18.5. The provisions of this clause shall remain in full force and
effect notwithstanding that after the Executive has made or
originated any such Intellectual Property the Employment may
have ceased or been determined for any reason whatsoever with
the intention that the same shall bind the heirs of an/or
assigns of the Executive.
19. COPYRIGHT
The Executive shall promptly disclose to the Company all works in which
copyright or design rights may exist which the Executive may make or originate
either solely or jointly with others during the Employment. Any such copyright
works or designs created by him in the normal course of his Employment or in the
course of carrying out duties specifically assigned to him which relate to the
affairs of the Company shall be the property of the Company whether or not the
work was made by direction of the Company or was intended for the Company and
the copyright in it and the rights in any design shall belong to the Company and
to the extent that such copyright or design rights are not otherwise vested in
the Company the Executive hereby assigns the same to the Company.
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20. POST-TERMINATION OBLIGATIONS
20.1. The Executive shall not during the period of six (6) months
after termination of the Employment solicit or endeavour to
entice away from or discourage from being employed by the
Company or any EM Group Company any employee or director
employed by the Company or any EM Group Company and who to his
knowledge was an employee thereof at the date of such
termination or whom to his knowledge has at that date agreed
to be engaged as an employee of the Company or any EM Group
Company and with whom the Executive has dealt or had contact
in the normal course of his duties.
20.2. The Executive shall not for a period of six (6) months after
the termination of the Employment (without the previous
consent in writing of the Company) and whether on his own
account or for any other person, firm or company directly in
connection with any business similar to or in competition
with the business of the Company solicit or endeavour to
entice away from the Company any person, firm or company (a)
who or which in the twelve (12) months prior to the end of his
Employment shall have been a customer of or in the habit of
dealing with the Company and (b) with whom or which the
Executive had personal dealings in the course of his
employment in the twelve (12) months prior to the end of his
Employment.
20.3. The Executive shall not for a period of six (6) months after
the termination of his Employment (without the previous
consent in writing of the Company) and whether on his own
account or for any other person, firm or company directly or
indirectly in connection with any business similar to or in
competition with the business of the Company do any business
with, accept orders from, or have any business dealings with
any person, firm or company (a) who or which in the twelve
(12) months prior to the end of his Employment was a customer
of the Company and (b) with whom or which the Executive had
personal dealings in the course of his Employment in the
twelve (12) months prior to the end of his Employment.
20.4. The Executive shall not for a period of six (6) months after
the termination of his Employment and within the United
Kingdom (without the previous consent in writing of the
Company) directly or indirectly be engaged concerned or
interested (whether as principal, servant, agent,consultant
or otherwise) in any trade or business which is in competition
with any trade or business being carried on by the Company at
the end of the Employment or during a period of twelve (12)
months prior to the end of his Employment and with which the
Executive was concerned in the course of his Employment,
provided always that during such six (6) month period the
Company will pay the Executive a further six (6) month salary
and bonus even though his Employment has been terminated but
only in circumstances where no summary termination has
occurred in accordance with Clause 22 of this Agreement and
the Executive is not in breach of the covenants contained
in Clause 20. Bonuses will be calculated by dividing the
previous 12 months bonus total by 12.
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20.5. The Executive shall not at any time after the Termination Date
represent himself as being employed by or connected with the
Company or any EM Group Company.
20.6. The Executive acknowledges:
(i) that each of the foregoing subclauses of this clause
constitutes an entirely separate and independent
restriction on him; and
(ii) while at the date of this Agreement the duration,
extent and application of each of the restrictions
are considered by the parties no greater than is
necessary for the protection of the interests of the
Company and any EM Group Company and reasonable in
all the circumstances it is acknowledged that
restrictions of such a nature may become invalid
because of changing circumstances and accordingly if
any of the restrictions shall be adjudged to be void
or ineffective for whatever reason but would be
adjudged to be valid and effective if part of the
wording thereof were deleted or the periods thereof
reduced or the area thereof reduced in scope they
shall apply with such modifications as may be
necessary to make them valid and effective.
21. DELIVERY OF DOCUMENTS AND PROPERTY
The Executive shall upon request at any time and in any event upon the
termination of the Executive's Employment immediately deliver up to the Company
or its authorized representative all keys, security passes, credit cards, plans,
statistics, documents, records, papers, magnetic disks, tapes or other software
storage media and all property of whatsoever nature which may be in his
possession or control or relate in any way to the business affairs of the
Company or any EM Group Company and the Executive shall not, without the written
consent of the Company, retain any copies thereof.
22. REMEDIES
It is expressly agreed by the Executive and the Company that the provisions of
Sections 17, 18, 19, 20 and 21 are reasonable for purposes of preserving for the
Company its business, goodwill and proprietary information. In the event any
breach of the aforementioned provisions by the Executive, the parties recognize
and acknowledge that a remedy at law will be inadequate and the Company may
suffer irreparable injury. The Executive acknowledges that the services to be
rendered by him are of a character giving them peculiar value, the loss of which
cannot be adequately compensated for in damages; accordingly the Executive
consents to injunctive and other appropriate equitable relief upon the
institution of proceedings therefor by the Company in order to protect the
Company's rights. Such relief shall be in addition to any other relief to which
the Company may be entitled at law or in equity.
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23. SUMMARY TERMINATION
In any of the following cases the Company may terminate the Executive's
Employment by written notice taking effect on the date of its service in which
case the Executive shall not be entitled to any further payment from the Company
except such sums as shall then have accrued due;
(i) if the Executive shall be guilty of any gross
misconduct or any repeated breach of any of the terms
of this Agreement;
(ii) if the Executive shall be convicted of a criminal
offense (except for a road traffic offense or an
offense not involving a custodial sentence);
(iii) if the Executive be adjudged bankrupt or makes any
composition or enters into any deed of arrangement
with his creditors;
(iv) if the Executive is prohibited by law from being or
acting as a director;
(v) if the Executive shall become of unsound mind or
become a patient under the Mental Health Xxx 0000;
(vi) if the Executive resigns as a director of the Company
otherwise than at the request of the Company
24. NO RIGHT TO WORK
24.1. The Company shall be under no obligation to provide any work
for the Executive during any period of notice either given by
the Company or the Executive to terminate the Executive's
Employment under this Agreement. The Company may at any time
during the said period suspend the Executive from his
Employment or exclude him from any premises of the Company.
Provided that during such period the Executive shall continue
to receive salary and all other contractual benefits including
a months bonus figure (calculated by dividing the previous
total bonus payment over the preceding twelve (12) month
period by twelve (12).
24.2. If the Contract is terminated by notice in accordance with
Clause 4 then the period referred to in Clause 20.1 to 20.4
shall start to run from the date of such notice. This proviso
will not apply should the Contract be terminated in accordance
with Clause 23.
25. SHORT NOTICE
If the Executive shall at any time become or be unable properly to perform his
duties hereunder by reason of ill health accident or otherwise for a period or
periods aggregating at least one hundred eighty (180) days in any period of
twelve (12) consecutive calendar months the Company may by not less than three
(3) month's notice in writing determine this Agreement.
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26. RESIGNATION OF OFFICE
Upon the termination of the Employment the Executive shall at any time or from
time to time thereafter upon the request of the Company resign without claim for
compensation from all offices held by him in the Company and any EM Group
Company and should he fail to do so the Company is hereby irrevocably authorized
to appoint some person in his name and on his behalf to sign and execute all
documents or things necessary or requisite to give effect thereto.
27. RETIREMENT
The Employment shall automatically terminate on the Executive reaching his 65th
birthday.
28. PRIOR RIGHTS
The termination of the Employment shall be without prejudice to any right that
the Company may have in respect of any breach by the Executive of any of the
provisions of this Agreement which may have occurred prior to such
determination.
29. NOTICES
Any notice given under this Agreement shall be deemed to have been duly given if
dispatched by either party hereto by registered post addressed to the other
party in the case of the Company to its registered office for the time being and
in the case of the Executive to his last known address and such notice shall be
deemed to have been given on the day on which in the ordinary course of post it
would be delivered.
30. PRIOR AGREEMENTS
This Agreement is in substitution for all previous contracts of employment
express or implied between the Company or EM Group Company and the Executive
which shall be deemed to have been terminated by mutual consent as from the
Commencement Date.
31. FIXED TERM
Pursuant to ss. 196 of the Employment Rights Xxx 0000 the Executive hereby
agrees that no rights shall arise under xx.xx. 94 and 135 respectively of that
Act in relation to this Agreement if the term of the Executive's Employment
under it expires without being renewed.
32. DISCIPLINARY AND GRIEVANCE PROCEDURE
There are no fixed rules for the resolution of grievance or disciplinary
problems. In the event of the Executive being dissatisfied with any decision
taken against him, or have any grievance relating to the Employment, he should
apply in the first instance to the Chairman of the Board who will either propose
a solution or refer the matter to the Board for a final decision.
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33. THE COMPANY'S STAFF HANDBOOK
The terms of the Company's standard terms and conditions and employment policies
and procedures which are set out in the Company's staff handbook shall be the
terms of the Executive Employment save to the extent that they are inconsistent
with this Agreement.
34. RECONSTRUCTION OR AMALGAMATION
If before the termination of this Agreement the Employment shall be determined
by reason of the liquidation of the Company for the purposes of reconstruction
or amalgamation and the Executive shall be offered employment with any concern
or undertaking resulting from such reconstruction or amalgamation on terms and
conditions no less favorable than the terms of this Agreement then the Executive
shall have no claim against the Company in respect of the determination of the
Employment.
35. EMPLOYMENT RIGHTS XXX 0000
Schedule 2 to this Agreement sets out the particulars of employment not
contained in the Agreement that must be given to the Executive in accordance
with the terms of the said Employment Right Xxx 0000.
36. ATTORNEY'S FEE
In the event that any party hereto shall file suit to enforce any of the terms
of this Agreement or to recover damages or seek injunctive relief, the
prevailing party shall be entitled to recover reasonable attorney's fees and
costs incurred in such proceedings.
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SCHEDULE 1
TABLE OF SALARY INCREASES
Date of
Current Increase commencement New salary Signed
salary of new salary
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SCHEDULE 2
EMPLOYMENT RIGHTS ACT 1996
The following information is given to supplement the information given in the
Agreement in order to comply with the requirements of section 1 of the
Employment Rights Act of 1996.
1. The Executive's job title is Managing Director.
2. The Executive's continuous period of employment with the Company commenced
on 1st January 1996 and is not continuous with any previous period of
employment with any other employer.
3. There are no collective agreements in force which affect the terms and
conditions of the Executive's employment.
SCHEDULE 3
Subject to a minimum of a monthly guarantee of /poundsterling/ 2,500 per month
the bonus paid to the Executive shall be calculated as follows:
The bonus shall be equal to five percent (5%) of net pre-tax profit of European
Micro Plc, plus two and one-half percent (2.5%) of net pre-tax profit of Big
Blue Europe, B.V. In calculating the net pre-tax profit the following costs
shall be excluded: (i) any fees, consultancy costs, salaries, inter-company
charges paid either to Technology Express, Inc. or American Micro Computer
Centre and (ii) any bonus payments to any of Xxxxxxxxxx Xxxxxxxxx, Xxxxxxx Xxxxx
and Xx Xxxxxxx. The bonus shall increase to six percent (6%) of net pre-tax
profit of European Micro Plc if such net pre-tax profit exceeds the plan agreed
to between the Company and the Executive before the start of the fiscal year in
which the bonus shall be paid.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as a Deed the
day and year first above written.
Signed by )
Director and by ) /s/ Xxxx X. Xxxxxxxxx
Secretary )
for and on behalf of the )
Company )
Signed by the Executive ) /s/ Xxxxxxxx Xxxxxxx
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