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DATED 2000
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SAGENT TECHNOLOGY INC
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XXXXXX XXXXXX
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SERVICE AGREEMENT
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XXXXXX XXXXXXX XXXXXXX
Xxxxxxxxx
00 Xxxxxxxx Xxxxxxxxxx
Xxxxxxxxxxx
Xxxxxx XX0X 0XX
Tel No: 000 0000 0000
Fax No: 000 0000 0000
Ref: ASG/SLP
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INDEX
CLAUSE NO. PAGE NO.
1. Definitions and Interpretations....................................1
2. Period of Employment...............................................2
3. Duties.............................................................3
4. Place of Employment................................................3
5. Remuneration and Benefits..........................................4
6. Signing Bonus......................................................5
7. Change of Control..................................................6
8. Expenses...........................................................5
9. Pension............................................................5
10. Holidays...........................................................5
11. Sickness or Injury.................................................6
12. Outside Interests..................................................7
13. Confidential Information and Trade Secrets.........................7
14. Intellectual Property..............................................9
15. Dismissal.........................................................11
16. Suspension........................................................12
17. Grievance and Disciplinary Procedure..............................12
18. Duties upon Termination...........................................12
19. Restrictions......................................................13
20. Restrictive Trade Practices Act...................................16
21. Data Protection...................................................17
22. Notices...........................................................17
23. Miscellaneous.....................................................18
24. Law and Jurisdiction..............................................19
Schedule 1..............................................................20
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EXHIBIT 10.32
THIS AGREEMENT is made the 1st day of January 2001
BETWEEN
(1) SAGENT TECHNOLOGY INC whose principal place of business is at 000 X. Xx
Xxxxxx Xxxx, Xxxxx 000, Xxxxxxxx Xxxx, XX, 00000, XXX (the "Company");
and
(2) XXXXXX XXXXXX of Oak Moor, Mill Green, Headley, Newbury, U.K., RG198AN
(the "Executive").
AGREED TERMS
1. DEFINITIONS
1.1 In this agreement including the schedule the following expressions shall
have the following meanings:
"ASSOCIATED COMPANY" means any holding or intermediate holding company
of the Company and any other company over which the Company (either
alone or in conjunction with any connected person) or any holding or
intermediate holding company has control for the time being within the
meaning of section 840 of the ICTA;
"BOARD" means the board of directors of the Company from time to time;
"EFFECTIVE DATE" means the date of this agreement;
"EMPLOYMENT" means the employment of the Executive by the Company;
"ICTA" means the Income and Corporation Taxes Xxx 0000;
"TERMINATION DATE" means the date on which the Executive's employment
under this agreement terminates;
"TERMINATION WITHOUT CAUSE" means separation of employment without a
specific reason;
1.2 In this agreement and the schedule:
(a) reference to any statute or statutory provision includes a
reference to that statute or statutory provision as amended,
extended or re-enacted and to any regulation, order, instrument
or subordinate legislation under the relevant statute or
statutory provision;
(b) reference to the singular includes a reference to the plural and
vice versa;
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(c) reference to any clause, sub-clause or schedule is to a clause,
sub-clause or schedule (as the case may be) of or to this
agreement;
(d) reference to any gender includes a reference to all other
genders; and
(e) references to persons include bodies corporate, unincorporated
associations and partnerships and any reference to any party who
is an individual is also deemed to include their respective
legal personal representative(s).
2. PERIOD OF EMPLOYMENT
2.1 The Executive's job title will be Executive Vice President, Sales - EMEA
and President Europe.
2.2 The Employment shall begin on the Effective Date and shall continue
until terminated in accordance with the terms of this agreement.
2.3 There is no employment with a previous employer which counts as part of
the Executive's continuous period of employment for the purposes of the
Employment Rights Xxx 0000 which began on the Effective Date.
(a) The Company may terminate the Employment by giving the Executive
three months' written notice to expire at any time on or after
August 1, 2002.
(b) The Executive may terminate the Employment by giving the Company
three months' written notice to expire at any time on or after
August 1, 2002.
(c) The Employment shall in any event terminate without notice upon
the Executive's sixtieth birthday, unless agreed to otherwise
between the executive and the Board.
2.4 If written notice is given by the Executive or by the Company to
terminate the Employment the Company may notwithstanding any other terms
of this agreement but subject to sub-clause 2.5:
(a) require the Executive to continue to perform such duties as the
Board may direct so long as such duties are not demeaning; or
(b) require the Executive to perform no duties and exclude the
Executive from any premises of the Company or any Associated
Company,
and in each case the Company will continue to pay the Executive salary
and provide all other benefits arising under this agreement during the
period of notice.
2.5 If written notice is given by the Executive or by the Company to
terminate the Employment the Company may in its sole and absolute
discretion terminate the Executive's employment forthwith by undertaking
to pay the Executive within 28 days salary in lieu of any required
notice or the unexpired period thereof (subject to tax and national
insurance) together with a further amount by way of a mutually
agreeable, reasonable compensation for the loss of the Executive's other
contractual benefits (including bonus and insurance) and any accrued
holiday pay entitlement pursuant to clause 10 and Schedule 1. Where the
Company
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terminates this agreement in accordance with this sub-clause the terms
of clauses 13 and 19 shall remain in full force and effect.
2.6 Where the Company terminates this agreement otherwise than in accordance
with the provisions of sub-clause 2.3(a) and 2.5 (subject always to the
provisions of clause 15) any damages to which the Executive may be
entitled shall be calculated in accordance with ordinary common law
principles including those relating to mitigation of loss.
3. DUTIES
The Executive:
(a) shall exercise the powers and functions and perform the duties
reasonably assigned to him from time to time by or under the
authority of the Board in such manner as shall be reasonably
specified by or under the authority of the Board;
(b) shall report to the Company's Chief Executive Officer and
President as and when reasonably required;
(c) shall devote the whole of his time attention and abilities to
the performance of his duties during the Company's normal
business hours of 8am to 5pm Monday to Friday inclusive and at
such other times as may reasonably be necessary in the interests
of the Company (unless prevented by illness or other incapacity
and except as may from time to time be permitted or required by
the Board) and the Executive accepts that by signing this
agreement he has agreed that regulation 4 (1) of the Working
Time Regulations 1998 shall not apply;
(d) shall well and faithfully serve the Company (and any Associated
Company if directed to do so by the Board) and use his best
endeavours to promote and protect the interests of the Company
and any Associated Company;
(e) undertakes not to harm the reputation of the Company or any
Associated Company; and
(f) shall, when requested to do so, fully and promptly give the
Board such explanations, information and assistance as it may
require relating to the transactions and affairs of the Company
(and any Associated Company) of which the Executive shall have
knowledge or of which the Executive ought to have knowledge.
4. PLACE OF EMPLOYMENT
The Executive's place of employment shall be at the offices of the
Company at 00 Xxxxxx Xxx, Xxxxxx, X0, 0XX, Xxxxxx, XX, or at any new
location, as agreed to by the Executive and the Chief Executive Officer.
In addition, the Executive shall travel to such parts of the world as
the Board may direct or authorise. If the Company requires the Executive
to work outside the United Kingdom for a period of more than one month
it will provide him with written details of any terms and conditions
which may apply to that work and his return to the United Kingdom.
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5. REMUNERATION AND BENEFITS
5.1
(a) The Executive shall be paid a basic salary at the pounds
sterling equivalent of US$250,000 per annum, or at such other
rate as may be agreed in writing for the proper performance of
his duties. This salary shall accrue from day to day and shall
be payable once a month.
(b) The salary shall be reviewed by the Board on or with effect from
1st January 2001 and thereafter not less than once in each
calendar year. The Executive's salary shall not be less than
that payable immediately before each such review.
(c) The Executive will also be entitled to participate in the
Company's bonus scheme. Bonuses will be awarded at the rate of
4% for the first US$4 million of revenue and 8% for revenues in
excess of US$4 million. Revenue is all revenue (excluding
maintenance) recognized for Europe, Middle East, and Africa and
the bonus will be paid quarterly
(d) Subject to the Executive continuing to hold a valid UK driving
licence, the Executive shall receive a monthly car allowance of
the pounds sterling equivalent of US$1,000.
5.2 The Executive shall also receive the following benefits:
(a) the Executive shall be entitled to be a member of such medical
expenses scheme as the Company may make available from time to
time provided the Executive meets the normal underwriting
requirements of that scheme and is accepted at normal rates of
premium;
(b) the Executive shall be entitled to the benefit of life insurance
cover of US$2 million provided the Executive satisfies a medical
examination and is accepted at normal rates of premium;
(c) the Executive shall be entitled to be a member of the Company's
disability insurance scheme provided the Executive meets the
normal underwriting requirements of the scheme and is accepted
at normal rates of premium.
Details of these benefits may be obtained from the Executive's manager.
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6. SIGNING BONUS
6.1 The Executive will receive a signing bonus of the pounds sterling
equivalent of US$250,000, 50 per cent of which will be payable on the
Effective Date and the remainder payable on a date being six months
following the Effective Date.
6.2 The signing bonus will be repayable to the Company if the Executive's
employment, of his own choosing (other than in circumstances where he is
entitled to treat himself as having been constructively dismissed), is
terminated within twelve months of the Effective Date.
7. CHANGE OF CONTROL/TERMINATION WITHOUT CAUSE
If the Company undergoes a change in control and the Executive is
terminated not for cause or voluntarily terminates for good reason a
severance payment of the pounds sterling equivalent of US$400,000 will
be paid in 28 days. Change of control occurs in the event of a merger of
the Company with or into another corporation in which the holders of at
least 50% of the Company's outstanding voting power hold less than 50%
of the outstanding voting power immediately after such merger, or the
sale of substantially all of the assets of the Company (collectively, a
"Change of Control"). As used herein, "Good Reason" shall mean the
following (unless such event(s) applies generally to all senior
management of the Company):
(A) without the Executive's express written consent, the
assignment to the Executive of any duties or the reduction of the
Executive's duties, either of which results in a significant diminution
in the Executive's position or responsibilities with the Company in
effect immediately prior to the Change of Control, or the removal of the
Executive from such position and responsibilities;
(B) without the Executive's express written consent, a
substantial reduction, without good business reasons, of the facilities
and perquisites (includes office space and location) available to the
Executive immediately prior to such reduction;
(C) a material reduction by the Company in the base salary or
bonus opportunity of the Executive as in effect immediately prior to
such reduction;
(D) a material reduction by the Company in the kind or level of
Executive benefits to which the Executive is entitled immediately prior
to such reduction with the result that the Executive's overall benefits
package is significantly reduced;
(E) the relocation of the Executive to a facility or a location
more than 50 miles from the Executive's then present location, without
the Executive's express written consent; or
(F) any purported termination of the Executive's employment by
the Company which is not effected for death, disability or for Cause, or
any purported termination for which the grounds relied upon are not
valid.
7.1 If the employee is terminated without cause the Company will pay to the
Executive a severance payment equal to one year's salary together with a
further amounts by way of a mutually agreeable, reasonable compensation
for loss of the Executives other contractual benefits (including bonus
and insurance).
8. EXPENSES
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8.1 The Executive shall be reimbursed all reasonable hotel, travelling,
entertainment and other expenses properly incurred by him in the course
of the Employment in accordance with the Company's regulations from time
to time. If required by the Board, the Executive shall produce receipts
for such expenses acceptable to the Company.
8.2 Any credit card supplied to the Executive by the Company shall be used
only for expenses incurred by him in the course of the Employment and in
accordance with the Company's regulations.
9. PENSION
9.1 The Executive is not eligible for membership of any occupational pension
scheme.
9.1 A contracting-out certificate is not in force in respect of the
Executive's employment.
9.2 Subject to any applicable Inland Revenue requirements and overriding
legislation, the Company shall contribute to such personal pension
arrangement as the Executive nominates and the Company approves (such
approval not to be unreasonably withheld) at the rate of 8% of the basic
salary paid quarterly to the Executive under sub-clause 5.1(a).
10. HOLIDAYS
10.1 The Executive shall in addition to normal statutory and bank holidays be
entitled to 5 weeks' (25 working days') paid holiday during each year
commencing on 1st January and pro rata for any shorter period. The
Company shall endeavour to meet the Executive's reasonable requests as
to time and duration of holidays but it reserves the right to arrange
holidays in its interest. The Executive's entitlement to holidays and to
holiday pay shall be subject to the rules of the Company from time to
time in force relating to holiday entitlement and holiday pay.
10.2 The Company's current holiday rules are set out in Schedule 1.
11. SICKNESS OR INJURY
Payment
11.1 If, in the opinion of the Board, the Executive is unable to perform his
duties properly for a period, or periods, not exceeding six months
(whether or not any days not worked are normal working days) in the
aggregate in any period of twelve months ("the Aggregate Period") by
reason of illness (including mental illness), accident or any other
cause beyond the control of the Executive, then he shall be entitled
during that time to receive his full remuneration. Thereafter any
payment shall be subject to, and in accordance with, the terms of the
Company's disability insurance scheme.
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Procedures
11.2 If the Executive is prevented by any of the factors mentioned in
sub-clause 11.1 from performing his duties properly he shall report this
fact promptly to the Company's personnel department by telephone on the
first morning of absence or as soon as reasonably practical thereafter.
If the Executive is absent for more than three consecutive working days
he must complete a self-certification sickness form on his return and
deliver it to the personnel department. If the absence continues for
five or more working days he shall provide an appropriate medical
certificate from his doctor in the manner required by the rules of the
Company. Thereafter the Executive should submit a further appropriate
medical certificate at weekly intervals during the whole period of
absence.
11.3 Payment of any remuneration to the Executive under sub-clause 11.1 is
conditional upon the prompt compliance by the Executive of his
obligations under sub-clauses 11.2 and 11.5 as well as with any other
rules of the Company from time to time in force relating to sickness or
injury.
SSP
11.4 Statutory sick pay ("SSP") will be paid by the Company in accordance
with the legislation in force at the time of absence. Any payment of
remuneration under sub-clause 11.1 for a day of absence will discharge
its obligation to pay SSP for that day.
Medical Examination
11.5 The Company may at any time require the Executive to be medically
examined at its expense by a medical practitioner nominated by it and
for a report of that examination to be provided to the Board.
Termination
11.6 If, in the opinion of the Board, the Executive is or has been unable to
perform his duties properly for a period or periods exceeding the
Aggregate Period or if the Board at any time has reason to believe that
because of any such cause the Executive may be unable properly to
perform his duties for a continuous period of six months or more, the
Company shall be entitled at any time to give to the Executive not fewer
than six months' notice of termination of the Employment less the
aggregate of any periods during which he has been paid salary under
sub-clause 11.1 during the twelve months prior to the giving of such
notice provided always that the Company may not terminate the Employment
pursuant to this sub-clause 11.6 if the Executive is in receipt of, or
entitled to, benefit under the terms of the Company's disability
insurance scheme unless the Company shall first arrange for benefits not
less favourable to the Executive than the net benefits payable under the
Company's disability insurance scheme to be paid by the insurer to the
Executive.
12. OUTSIDE INTERESTS
During the Employment the Executive shall not (save with the prior
written consent of the Board):
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(a) directly or indirectly be engaged, concerned or interested in
any capacity in any business, trade or occupation other than
that of the Company except as a holder of not more than five per
cent. of the issued shares or securities of any companies which
are listed or dealt in on any recognised stock exchange or
market. For this purpose "occupation" shall include any public,
private, or charitable work which the Board considers may hinder
or interfere with the performance of the Executive's duties; or
(b) introduce to any other person, firm or company other than any
Associated Company, or transact for the account of himself or
any other person, firm or company other than any Associated
Company, business of any kind with which the Company is able to
deal.
13. CONFIDENTIAL INFORMATION AND TRADE SECRETS
13.1 The Executive acknowledges that in the ordinary course of the Employment
he will be exposed to information about the Company's business and that
of any Associated Company and that of its or their suppliers and
customers which amounts to a trade secret, is confidential or is
commercially sensitive and which may not be readily available to others
engaged in a similar business to that of the Company or any Associated
Company or to the general public and which if disclosed may cause harm
to the Company's business or that of any Associated Company.
13.2 The Executive shall keep secret and shall not at any time either during
the Employment, or after its termination, for whatever reason, use,
communicate or reveal to any person for the Executive's own or another's
benefit, any secret or confidential information concerning the business,
finances or organisation of the Company or any Associated Company, its
or their systems, techniques or know-how or its or their suppliers or
customers which shall have come to his knowledge during the course of
the Employment. The Executive shall also use his best endeavours to
prevent the publication, disclosure or use of any such information.
13.3 For the purposes of this clause and by way of illustration and not
limitation information will prima facie be secret and confidential if it
is not in the public domain and relates to:
(a) raw materials;
(b) research and developments;
(c) formulae, formulations;
(d) methods of treatment, processing, manufacture or production,
process and production controls including quality controls;
(e) suppliers and their production and delivery capabilities;
(f) customers and details of their particular requirements;
(g) costings, profit margins, discounts, rebates and other financial
information;
(h) marketing strategies and tactics;
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(i) current activities and current and future plans relating to all
or any of development, production or sales including the timing
of all or any such matters;
(j) the development of new products;
(k) production or design secrets; or
(l) technical design or specification of the Company's or any
Associated Company's products;
(m) pricing, credit policies, credit procedures, payment policies,
payment procedures and systems for the same whether of the
Company or any Associated Company or of any client customer or
supplier of the Company or any Associated Company.
13.4 The restrictions contained in this clause shall not apply to:
(a) any disclosure or use authorised by the Board or required in the
ordinary and proper course of the Employment or as required by a
court or tribunal of competent jurisdiction or as required by an
appropriate regulatory authority; or
(b) any information which the Executive can demonstrate was known to
the Executive prior to the commencement of his employment by the
Company or is in the public domain otherwise than as a result of
a breach of this clause or breach of an equivalent provision by
any other employee of the Company.
14. INTELLECTUAL PROPERTY
14.1 For the purposes of this clause, the following terms shall have the
following meanings:
"INTELLECTUAL PROPERTY" means patents, trade marks, service marks,
registered designs, in each case whether registered or unregistered
including any applications for any of the foregoing, trade and business
names, copyright, goodwill, rights in designs, databases, inventions,
confidential information, know-how, rights under licences, consents,
orders, statute or otherwise howsoever in relation to any such rights
and rights of the same or similar effect or nature arising or subsisting
in any part of the world.
"ORIGINATE" means (without prejudice to the generality of the word)
originate, compose, write, invent, create, generate, discover, design,
develop, manufacture or participate whether solely or with others.
14.2 The Executive agrees and acknowledges that because of the nature of the
Executive's duties and responsibilities arising from the Employment, the
Executive is under a special obligation to further the interests of the
business of the Company. Consequently, any invention made by the
Executive in the course of the Employment or connected with the
Employment whether or not made during normal working hours or Originated
by the Executive shall belong to the Company.
14.3 The Executive assigns to the Company with full title guarantee (by way
of assignment of all present and future Intellectual Property rights)
all Intellectual Property rights Originated
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by the Executive (whether or not during normal working hours) in the
course of the Employment or connected with the Employment with the
Company throughout the world for the full term of protection together
with all extensions, revisions, reversions, revivals and renewals and
all rights of action related to such Intellectual Property rights
including the right to institute and maintain proceedings and the right
to xxx for past infringements. The Executive agrees to disclose promptly
in writing to the Company all details of any such Intellectual Property.
14.4 The Executive waives irrevocably and unconditionally any moral rights in
any part of the world (including any rights conferred by Section 77-85
of the Copyright Designs and Patents Act 1988) that the Executive or the
Executive's successors, personal representatives or heirs have or may
have against the Company or any of its employees, officers or agents in
any of the Intellectual Property rights referred to in clause 14.3.
14.5 The Executive agrees, at the Company's request, to exercise during the
Employment by the Company, or at any time after the termination of the
Employment, any moral rights the Executive has or may have (pursuant to
Sections 77-85 of the Copyright Designs and Patents Xxx 0000 or
otherwise) in any Intellectual Property rights referred to in clause
14.3 against any third party in such manner as the Company shall
reasonably request and in accordance with the Company's directions, and
the Executive agrees not to exercise such moral rights other than in
accordance with this paragraph.
14.6 The Executive agrees that the Executive will execute such deeds and
documents and do such other acts and things as may be necessary or
desirable in the opinion of the Company to substantiate, protect and/or
maintain the Intellectual Property rights referred to in clause 14.3
including to give effect to the terms of this agreement and to vest the
Intellectual Property rights referred to in clause 14.3 in the Company.
The Executive acknowledges that, except as provided for by law, no
further remuneration or compensation other than that provided for under
this agreement is or may become due to the Executive in respect of the
performance of the Executive's obligations under this agreement. The
assignment contained in sub clause 14.3 shall not be affected by reason
of the termination of the Employment.
14.7 Decisions as to the substantiation, protection and/or maintenance of any
Intellectual Property rights referred to in clause 14.3 shall be at the
sole discretion (without obligation) of the Company and the Executive
agrees that the Executive shall have no claim or other right of action
against the Company should it decide not to substantiate, protect or
maintain any of such Intellectual Property rights.
14.8 The Executive appoints the Company to be the Executive's attorney in the
Executive's name and on the Executive's behalf to execute, sign and do
all such deeds, instruments or things and generally to use the
Executive's name for the purposes of giving to the Company or its
nominees the full benefits of rights conferred under this agreement.
14.9 The Executive undertakes not to make any claim (whether under Section 37
of the Patents Xxx 0000 or otherwise howsoever) to be entitled, whether
in law or equity to any of the inventions included in the Intellectual
Property rights referred to in clause 14.3 or to any patents or patents
or similar protection granted in respect of any such inventions.
14.10 The Executive agrees to offer to the Company on arms length terms to be
agreed with the Company and to give the Company a reasonable opportunity
to acquire any Intellectual
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Property rights Originated by the Executive which do not vest in the
Company under this agreement and, in the absence of agreement, such
terms shall be determined by an arbitrator appointed by agreement
between the Company and the Executive (or in the absence of agreement by
the auditors of the Company) whose costs shall be borne equally by the
Executive and the Company.
14.11 The Executive warrants, represents and agrees that:
(a) the Intellectual Property rights referred to in clause 14.3 are
or will be original have not been copied wholly or substantially
and do not and shall not violate or infringe any copyright,
moral right or any other right of any kind of any person;
(b) the Executive is free and entitled to assign to the Company the
Intellectual Property rights referred to in clause 14.3 hereby
assigned to the Company and that the Executive is not under any
disability, restriction or prohibition which would or might
prevent the Executive from performing or observing any of the
Executive's obligations under this clause; and
(c) the Executive has not entered into and shall not enter into any
arrangement which conflicts or may conflict with this clause and
has not assigned granted or licensed to any third party or
charged or encumbered in any way any rights in the Intellectual
Property rights referred to in clause 14.3 and is the sole
absolute unencumbered legal and beneficial owner of the
Intellectual Property and is and shall be the sole author and
creator of the Intellectual Property.
14.12 The Executive hereby indemnifies the Company and undertakes to keep the
Company at all times fully and completely indemnified of, from and
against all or any actions, proceedings, claims, demands, costs
(including without prejudice to the generality of this provision legal
costs of the Company on a full indemnity basis) expenses liability loss,
awards and damages of any kind howsoever arising which the Company may
directly or indirectly incur or suffer as a result of or which arise
directly or indirectly out of any breach or non-performance by the
Executive of any of the Executive's undertakings, warranties,
representations or obligations in this clause, express or implied.
15. DISMISSAL
Notwithstanding the provisions of clause 2, the Company shall be
entitled to terminate the Employment summarily by oral or written notice
and without any payment in lieu of notice (but without prejudice to the
rights and remedies of the Company for any breach of this agreement and
to the Executive's continuing obligations under this agreement) in any
of the following events:
(a) if the Executive shall commit any serious or wilful or
persistent breach or breaches of any express or implied term of
his employment;
(b) if the Board shall have reason to believe that the Executive has
committed any criminal offence or been guilty of any dishonesty
or serious misconduct in each case whether during the
performance of his duties or otherwise which in the opinion of
the Board renders the Executive unfit to continue as an
executive of the Company or which would be likely adversely to
prejudice the reputation or
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interests of the Company or any Associated Company for which the
Executive has performed duties during the Employment;
(c) if the Executive shall petition for a bankruptcy order or have a
bankruptcy order made against him or take the benefit of any
legislation for the relief of insolvent debtors or make any
composition with his creditors or shall become prohibited by law
from being a director or taking part in the management of the
Company whether under the Company Directors Disqualification Act
1986 or otherwise;
(d) if, and without prejudice to the generality of the terms of this
clause 15, the Executive shall wilfully abuse or misuse the
computer system of the Company or any Associated Company, or any
password relating to such computer system or shall gain access
to any file or load any information or program contrary to the
interests or procedures of the Company or any Associated
Company; or
(e) if any information relating to the Executive's suitability for
employment by the Company and provided in the course of applying
for employment is found to be false or misleading.
(f) if the Executive fails or ceases to meet the requirements of any
regulatory body whose consent is required to enable the
Executive to undertake all or any of his duties and the
Employment.
16. SUSPENSION
If the Board has reason to suspect that any one or more of the events
set out in sub-clauses 15(a) to 15(f) (inclusive) has or have occurred
(or if the circumstances in sub-clause 11.6 appear to exist) the Board
may suspend the Executive on such terms as to payment of salary and
other benefits or otherwise as the Board may think fit pending further
investigations PROVIDED THAT in the event of any such suspension being
made the Executive shall have the right to terminate his employment
forthwith by notice in writing to the Company but without any claim for
compensation.
17. GRIEVANCE AND DISCIPLINARY PROCEDURE
17.1 If the Executive has any grievance relating to the Employment he should
raise the matter either with his direct manager or with Xxx Xxxxxx
orally or in writing and the matter will be discussed with the
Executive. If the matter is not then settled the Executive may submit
his grievance to the Board which shall as soon as possible consider such
grievance at a meeting of the Board and will give the Executive a
written response as soon as practicable thereafter. The decision of the
Board shall be final.
17.2 Subject to the provisions of sub-clause 11.6 and clause 15 the policy of
the Company is that an employee is not normally dismissed for a breach
of his contract of employment which is capable of being remedied until
after he has been warned that he will be dismissed in the event that
such breach is not remedied or is repeated. However the Executive
accepts that in the case of a senior executive of the Company it may not
always be appropriate to give any warning.
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17.3 A copy of the disciplinary rules and procedures of the Company can be
obtained from the Executive's manager. They do not form part of the
Executive's contract of employment.
18. DUTIES UPON TERMINATION
Upon termination of the Employment for whatever reason the Executive
shall immediately:
(a) hand over to the Company all documents, books, materials,
records, correspondence, papers and information (on whatever
media and wherever located) relating to the business of the
Company or any Associated Company, any magnetic discs on which
information relating to the business is stored and any keys,
credit cards and other property of the Company or any Associated
Company (including in particular any car provided to the
Executive) which may be in his possession, custody, care or
control and shall provide a signed statement that he has
complied fully with the terms of this clause;
(b) irretrievably delete any information relating to the business of
the Company or any Associated Company stored on any magnetic or
optical disc or memory and all matter derived therefrom which is
in his possession, custody, care or control outside the premises
of the Company and shall produce such evidence of compliance
with this sub-clause as the Company may require;
(c) resign any office or appointment held by him in the Company or
in any Associated Company without any claim for compensation or
damages for loss of such office or appointment and the Executive
hereby irrevocably appoints the Company as his agent to execute
letters of resignation of such offices or appointments on his
behalf; and
(d) transfer to the Company or as it may direct all shares held by
him in any company as nominee or trustee for the Company and
deliver to the Company the certificates therefor and the
Executive hereby irrevocably appoints the Company his attorney
to execute any such transfers on his behalf.
19. RESTRICTIONS
Definitions
19.1 For the purposes of this clause the following words have the following
meanings:
"CUSTOMER" means any customer or client of the Company in connection
with the Restricted Business or any other person, firm or company to
whom the Company has presented to or approached or with whom the Company
has negotiated with a view to that person becoming a customer or client
of the Company in connection with the Restricted Business and who became
a customer within three months following the Termination Date and in
each case provided that during the twelve month period immediately prior
to the Termination Date the Executive has dealt or sought to deal on
behalf of the Company with that customer or client or person, firm or
company or the Executive has been responsible during such period for the
account of or for managing the business relationship with that customer
or client or person firm or company;
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"DESIGNATED AREA" means the areas in Europe in which the Company carries
out the Restricted Business;
"RESTRICTED BUSINESS" means the design, manufacture, production,
research or development, customisation, marketing or sale of business
intelligence (data warehousing, data marts, data mining, OLAP) products
or services but limited to goods, products or services of a kind with
which the Executive was concerned or involved in the course of this
employment during the twelve month period immediately prior to the
Executive ceasing to be employed or for which the Executive has been
responsible during such period;
"RESTRICTED PERSON" means any person who has at any time in the period
of six months prior to the Termination Date been employed by the Company
or who is a consultant to the Company and in either case works in a
senior executive or a senior technical or senior advisory capacity in
the Restricted Business and who was known to or worked with the
Executive during that period;
Executive's Duties and Obligations
19.2 The Executive acknowledges that:
(a) his primary duty under this agreement is to manage the sales,
consulting, professional services and technical support
organizations throughout Europe, the Middle East and Africa;
(b) the information gained by him in the performance of his duties
is not or may not be known by the general public or by the
majority of those engaged in the business of business
intelligence;
(c) by virtue of his employment under this agreement he will obtain
confidential information as to the business, operations and
organisation of the Company including names of customers and
their operations which belong exclusively to, and is of
substantial value to the Company;
and that accordingly he agrees to be bound by this clause 19 in order to
protect the legitimate interests of the Company.
Non-solicitation of Customers
19.3 The Executive shall not for a period of twelve months after the
Termination Date either personally or by an agent and either on his own
account or for or in association with any other person directly or
indirectly canvass, solicit, approach or seek out or cause to be
canvassed, solicited, approached or sought out any Customer for orders
or instructions in respect of any goods or services provided or supplied
by the Company or substantially similar to such goods or services in
connection with the Restricted Business.
Non-dealing with Customers
19.4 The Executive shall not for a period of six months after the Termination
Date either personally or by an agent and either on his own account or
by or in association with any
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other person or otherwise directly or indirectly engage in the
Restricted Business with any Customer.
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Non-solicitation of Employees
19.5 The Executive shall not during his employment or for a period of twelve
months after the Termination Date either personally or by an agent and
either on his own account or for or in association with any other person
directly or indirectly solicit or endeavour to entice away from the
Company any Restricted Person or induce any Restricted Person to breach
their contract of employment or encourage a Restricted Person to resign.
Non-interference with Supplies
19.6 The Executive shall not for a period of twelve months after the
Termination Date either personally or by an agent and either on his own
account or for or in association with any other person directly or
indirectly interfere or seek to interfere or take such steps as may be
likely to interfere with the continuance of supplies to the Company in
respect of the Restricted Business (or the terms relating to such
supplies) from any supplier or seek to damage the relationship between
any supplier and the Company who has supplied goods or services to the
Company in the twelve month period immediately prior to the Executive
ceasing to be employed by the Company.
Non-competition within a Designated Area
19.7 The Executive shall not for the period of six months after the
Termination Date whether directly or indirectly:
(a) take up or hold any office in connection with any business which
is engaged or is intended to be engaged in the Restricted
Business within the Designated Area;
(b) take up or hold any post or position which enables or permits
the Executive to exercise whether personally or by an agent and
whether on his own account or in association with or for the
benefit of any other person either a controlling influence over
any business which is engaged or is intended to be engaged in
the Restricted Business within the Designated Area; or
(c) take up or hold any employment or consultancy in connection with
any business which is engaged or is intended to be engaged in
the Restricted Business within the Designated Area,
which would have the necessary or probable result of the Executive being
engaged within the Designated Area in business activities which are the
same or similar to the Restricted Business.
Application of Covenants to Associated Companies
19.8
(a) The provisions of sub-clauses 19.2 to 19.7 inclusive shall apply
equally where, during the period of twelve (12) months prior to
the Termination Date, the Executive was engaged in or
responsible for the business of any Associated Company (each of
which Associated Company is hereinafter called "Relevant
Company").
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(b) In addition to the covenants given by him in sub-clauses 19.2 to
19.7 above the Executive hereby covenants with the Company
(which for the purposes of this paragraph shall act as trustee
for each Relevant Company) in relation to each of the
sub-clauses 19.2 to 19.7 inclusive as if every reference therein
to the Company was a reference to the Relevant Company and the
definitions of "Customer", "Designated Area" and "Restricted
Business" and "Restricted Person" in sub-clause 19.1 apply with
the substitution of "the Relevant Company" for the Company.
19.9 The Executive undertakes with the Company that he will observe any
substitute restrictions (in place of those set out in sub-clauses 19.2
to 19.8 above) as the Company may from time to time specify in writing
which are in all respects less restrictive in extent than those
specified in sub-clause 19.3 to 19.8 above.
19.10 If any breach or violation of any of the terms of sub-clauses 19.3 to
19.8 inclusive occurs, the Executive and the Company agree that damages
alone might not compensate for such breach or violation and that in
those circumstances injunctive relief would be reasonable and essential
to safeguard the interests of the Company and that an injunction in
addition to any other remedy may accordingly be obtained by the Company.
No waiver of any such breach or violation shall be implied by the fact
that the Company for the time being and for whatever reason takes no
action in respect of such breach or violation.
19.11 The Executive fully understands the meaning and effect of the covenants
given by him at sub-clauses 19.2 to 19.8 and confirms that on taking
separate and independent legal advice on the terms of this agreement he
acknowledges and accepts that such sub-clauses are fair and reasonable
in all the circumstances at the time this agreement was made.
20. RESTRICTIVE TRADE PRACTICES ACT
Unless this agreement or any agreement or arrangement of which this
agreement forms part is a non-notifiable agreement for the purposes of
section 27A of the Restrictive Trade Practices Xxx 0000, if there is a
provision of this agreement, or of any such agreement or arrangement,
which causes or would cause this agreement or any such agreement or
arrangement to be subject to registration under the Restrictive Trade
Practices Xxx 0000, that provision shall not take effect until the date
after particulars of this agreement (or of that agreement or
arrangement, as the case may be) have been furnished to the Director
General of Fair Trading pursuant to section 24 of the Restrictive Trade
Practices Xxx 0000.
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21. DATA PROTECTION
21.1 The Executive agrees that personal data (other than sensitive personal
data) relating to him/her and to his/her employment with the Company may
to the extent that it is reasonably necessary in connection with his/her
employment or the business of the Company:
(a) be collected and held (in hard copy and computer readable form)
and processed by the Company; and
(b) be disclosed or transferred to other employees of the Company or
any other Associated Company and their employees; any other
persons as may be reasonably necessary; and as otherwise
required or permitted by law.
21.2 The Executive agrees that the Company may process sensitive personal
data relating to him/her, including medical details and details of
gender, race and ethnic origin. Personal data relating to gender, race
and ethnic origin will be processed by the Company only for the purpose
of monitoring the Company's equal opportunity policy with a view to
enabling equal opportunity to be promoted and maintained. The Executive
agrees that the Company may disclose or transfer such sensitive personal
data to other persons if it is required or permitted by law to do so or,
in the case of personal data relating to gender, race or ethnic origin,
for the purpose of monitoring, or enabling the monitoring of, the
Company's equal opportunity policy.
21.3 The Executive consents to transfer and disclosure of personal data as
set out above shall apply regardless of the country of residence of the
person to whom the data is to be transferred. Where the disclosure or
transfer is to a person resident outside the European Economic Area, the
Company shall take reasonable steps to ensure that his/her rights and
freedoms in relation to the processing of the relevant personal data are
adequately protected.
21.4 Except in relation to the conduct of activities to which the Executive
is giving his/her consent to the extent set out above, this does not
affect any rights which he/she has in law in relation to the collection,
processing or transfer of personal data relating to him/her.
22. NOTICES
22.1 Any notice or other written communication given under or in connection
with this agreement may be delivered personally or sent by first class
post (airmail if overseas) or by telex or facsimile.
22.2 The address for service of the Company shall be its registered office
marked for the attention of the managing director and in the case of the
Executive shall be his address stated in this agreement or if any other
permanent address has previously been notified to the Company to the
address so notified.
22.3 Any notice or other written communication shall be deemed to have been
served:
(a) if delivered personally, at the time of delivery;
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(b) if posted, at the expiry of two Business Days or in the case of
airmail four Business Days after it was posted;
(c) if sent by telex or facsimile message, at the time of
transmission (if sent during normal business hours, that is
09.30 to 17.30 local time) in the place from which it was sent
or (if not sent during such normal business hours) at the
beginning of the next Business Day in the place from which it
was sent.
22.4 In proving service it shall be sufficient to prove that personal
delivery was made, or that such notice or other written communication
was properly addressed stamped and posted or in the case of a telex that
the intended recipient's answerback code is shown on the copy retained
by the sender at the beginning and end of the message or in the case of
a facsimile message that an activity or other report from the sender's
facsimile machine can be produced in respect of the notice or other
written communication showing the recipient's facsimile number and the
number of pages transmitted.
23. MISCELLANEOUS
23.1 The Executive consents to the deduction from any sum otherwise payable
to the Executive by reason of the Employment (or its termination) the
value of any claim of whatever nature and in whatever capacity that the
Company may bona fide have against the Executive, including but not
limited to:
(a) overpayment of wages;
(b) overpayment in respect of expenses incurred by the Executive in
carrying out his duties;
(c) loans which the Company may from time to time make to the
Executive;
(d) advances on wages which the Company may from time to time make
to the Executive.
23.2 Save as expressly provided in this agreement no term or provision of
this agreement shall be varied or modified by any prior or subsequent
statement, conduct or act of any party. The Company and the Executive
may amend this agreement only by letter or written instrument signed by
both the Company and the Executive.
23.3 The headings to the clauses and any underlining in this agreement and in
the schedules are for ease of reference only and shall not form any part
of this agreement for the purposes of construction.
23.4 This agreement sets out the entire agreement and understanding between
the parties in connection with the Employment save only for any terms
implied by law. There are no collective agreements which directly affect
the terms and conditions of the Employment.
23.5 If at any time any term or provision in this agreement shall be held to
be illegal, invalid or unenforceable, in whole or in part, under any
rule of law or enactment, such term or provision or part shall to that
extent be deemed not to form part of this agreement, but the
enforceability of the remainder of this agreement shall not be affected.
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24. LAW AND JURISDICTION
24.1 This agreement shall be governed by and construed in accordance with
English law and each party to this agreement submits to the
non-exclusive jurisdiction of the English courts.
24.2 The Executive irrevocably agrees that the courts and tribunals of
England shall have jurisdiction to settle any dispute which may arise
out of or in connection with this agreement and that accordingly any
suit, action or proceedings arising out of this agreement (together in
this clause referred to as "Proceedings") may be brought in such courts
and tribunals.
24.3 The Executive irrevocably waives any objection which he may have now or
hereafter to the laying of the venue of any Proceedings in any such
courts and tribunals as are referred to in sub-clause 24.2 and any claim
that any such Proceedings have been brought in an inconvenient forum and
further irrevocably agree that a judgment in any Proceedings brought in
the English courts shall be conclusive and binding upon the Executive
and may be enforced in the courts of any other jurisdiction. The
Executive hereby expressly waives all rights of jurisdiction in any
Proceedings which he may have now or hereafter by reason of his present
domicile or by reason of any subsequent or other domicile.
24.4 Nothing contained in this clause shall limit the right of the Company to
take Proceedings against the Executive in any other court of competent
jurisdiction, nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other
jurisdiction, whether concurrently or not.
24.5 The Executive hereby consents generally in respect of any Proceedings
arising out of or in connection with this agreement to the giving of any
relief or the issue of any process in connection with such execution
against any property or assets whatsoever or any order or judgment which
may be made or given in such proceedings.
24.6 The Executive irrevocably agrees that any writ, judgment or other notice
of process shall be sufficiently and effectively served on him if
delivered, in connection with Proceedings in England, to 00 Xxxxxx Xxx,
Xxxxxx, X0, 0XX, Xxxxxx, XX.
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SCHEDULE 1
HOLIDAY RULES
1. Holiday accrual starts on the first day of employment. The employee will
accrue 25 days of time off per year. The holiday year is from January 1
to December 31, 160 hours' holiday in any holiday year may be carried
forward into the next year at the Company's discretion.
2. The time at which annual holidays may be taken is at the discretion of
the Company, but not more than 2 weeks may be taken at any one time.
3. On termination of the Employment the Executive shall be entitled to
receive a payment representing holiday accrued and as yet untaken on a
pro rata basis for the number of completed calendar months he has worked
during the current holiday year. Such payment shall be calculated at a
rate of 1/260 of annual basic salary payable to the Executive pursuant
to sub-clause 5.1(a) from time to time per day of accrued and untaken
holiday.
4. If at the Termination Date the Executive has taken holidays in excess of
his accrued entitlement he will be required to refund to the Company a
sum representing such unearned holiday. Such sum shall be calculated at
a rate of 1/260 of annual basic salary payable to the Executive pursuant
to sub-clause 5.1(a) from time to time per day of unearned holiday
taken.
Executed and delivered as a deed on the day and in the year first written above.
The parties to this agreement have signed and entered into this agreement on the
day and year first written above
EXECUTED by )
acting by )
Director
Director/Secretary
SIGNED by )
in the presence of: )
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