Exhibit 10.8
HOME SECURITY INTERNATIONAL, INC.
('Company')
XXXXX XXXXXXX
('Executive')
EXECUTIVE SERVICE AGREEMENT
XXXXXX XXXXXXX
Lawyers
Xxxxxx Xxxxxxx Building
00 Xxxxxx Xxxxx
XXXXXX XXX 0000
DX 000 Xxxxxx
Telephone (00) 0000 0000
Facsimile (00) 0000 0000
TABLE OF CONTENTS
1. Definitions..........................................................1
2. Appointment and Position.............................................2
3. Executive's Duties...................................................2
4. The Executive's Salary and other Benefits............................3
5. Options..............................................................3
6. Bonus................................................................3
7. Expenses.............................................................4
8. Executive's Leave....................................................4
9. Illness or Injury....................................................4
10. Confidential Information and Intellectual Property...................5
11. Assignment of Intellectual Property..................................5
12. Termination..........................................................6
13. Redundancy...........................................................6
14. What Happens After Termination of Employment.........................7
15. Restraint on the Executive's Conduct.................................7
16. Compliance...........................................................8
17. Severability.........................................................8
18. Waiver...............................................................8
19. Notice...............................................................8
20. Governing Law........................................................9
21. Entire Agreement.....................................................9
22. Alteration...........................................................9
23. This Agreement is Confidential.......................................9
24. Headings.............................................................9
AGREEMENT dated 1997
BETWEEN HOME SECURITY INTERNATIONAL INC. ("COMPANY")
AND XXXXX XXXXXXX ("EXECUTIVE")
RECITAL
The Executive has commenced employment with the Company. The Company and the
Executive wish to record the terms on which the Executive will continue that
employment by the Company.
AGREEMENT
1. Definitions
1.1 In this Agreement:
"Confidential Information" means all confidential information including,
but not limited to trade secrets and confidential know-how of which the
Executive becomes aware or generates (both before and after the day this
Agreement is signed) in the course of, or in connection with, employment
with the Company; and
"FHS Dealer" means any dealer, distributor or agent appointed by the
Company (or any related body corporate of the Company) from time to time to
promote the sales, installation and/or service of the SecurityGuard
Product.
"HSI Group" means the Company and its wholly owned subsidiaries.
"HSI Group Company" means a member of the HSI Group.
"Intellectual Property Rights" means all intellectual property rights
including without limitation patents, copyright, registered designs,
trademarks and the right to have confidential information kept confidential
and any application or right to apply for registration of any of those
rights.
"Sale" means the sale by an FHS Dealer of a SecurityGuard product to a
member of the public where the product has not been returned by the
consumer, nor has there been a refund of the price paid for the
SecurityGuard Product.
"SecurityGuard Product" means the home security alarm devices which at the
date of this agreement are manufactured by Ness Security Products Pty
Limited and known as "SecurityGuard" and "SecurityGuard II".
"Total Remuneration" means the salary and benefits due under clause 4.1
from time to time.
1.2 In this Agreement, unless the contrary intention appears:
(a) the singular includes the plural and vice versa;
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(b) a reference to a clause or schedule is a reference to a clause or
schedule to this Agreement and a reference to this Agreement includes
any schedules.
(c) a reference to a document or agreement, including this Agreement,
includes a reference to that document or agreement as novated, altered
or replaced from time to time.
(d) a reference to "$" is a reference to Australian currency; and
(e) a reference to writing includes typewriting, printing, photocopying
and any other method of representing words, figures or symbols in a
permanent visible form.
2. Appointment and Position
2.1 The Company must employ the Executive in the position of Executive Vice
President of International Business Development, or other position
determined by the Company from time to time in accordance with this
Agreement.
2.2 The Executive's employment will commence immediately following the
successful completion of the float of HSI.
3. Executive's Duties
3.1 The Executive must:
(a) perform to the best of the Executive's abilities and knowledge the
duties assigned to the Executive by the Company from time to time,
whether during or outside the Company's normal business hours and at
such places as the Company requires;
(b) serve the Company faithfully and diligently to the best of the
Executive's ability;
(c) use all reasonable efforts to promote the interests of the Company;
(d) act in the Company's best interests;
(e) comply with all policies of the Company in place from time to time;
(f) comply with all law applicable to the Executive's position and the
duties assigned to the Executive;
(g) report to the person or persons nominated by the Company from time to
time; and
(h) perform work in connection with any subsidiaries of the Company as
directed anywhere throughout the world.
(i) if required by the Company, accept employment with an HSI Group
Company, either exclusively or in conjunction with employment by the
Company.
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3.2 Without limiting the Executive's duties to the Company, the Executive must
not:
(a) act in conflict with the Company's best interests, or
(b) compete with the Company.
4. The Executive's Salary and other Benefits
4.1 The Company must remunerate the Executive in accordance with Schedule I.
4.2 In addition to the Executive's Total Remuneration, the Company must make
contributions for the Executive into a superannuation fund agreed between
the parties or, if there is no agreement, into a superannuation fund
nominated by the Company, on account of the minimum level of superannuation
contributions which the Company must make for the Executive for the
purposes of the Superannuation Guarantee (Administration) Xxx 0000 and the
Superannuation Guarantee Charge Act 1992 (collectively "SGC Legislation")
as amended from time to time ("contributions").
4.3 Upon commencing employment, the Executive must do everything necessary for
the Company to make the contributions.
4.4 The Total Remuneration does not include any fringe benefits tax payable
under the Fringe Benefits Tax Assessment Act 1986 in respect of:
a. any component of the Total Remuneration; and
b. any other benefit the Company provides to the Executive from time to
time under this Agreement.
4.5 The Company must review the Total Remuneration not less than once each year
and may vary the remuneration following that review and alter its
components.
5. Options
The Executive may be issued with options in accordance with Schedule 2.
6. Bonus
The Company may pay a bonus to the Executive in accordance with Schedule 3.
7. Expenses
The Company must pay for or reimburse the Executive for the Executive's
reasonable travel and out of pocket expenses approved by the Company.
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8. Executive's Leave
The Company must grant the Executive leave in accordance with applicable
law.
9. Illness or Injury
9.1 Subject to clause 9.2, the Company must grant the Executive up to 10 days
paid sick leave each year if the Executive is unable to perform the
Executive's duties due to illness or injury.
9.2 If the Executive is unable to perform the Executive's duties due to illness
or injury:
(a) for more than the period of the Executive's accumulated untaken paid
sick leave, but less than 6 months in any one period of 52 consecutive
weeks, the Executive's employment under this Agreement will continue
but the Company is not obliged to remunerate the Executive in
accordance with clause 4.1; or
(b) for equal to or more than 6 months in any one period of 52 consecutive
weeks, the Company may terminate this Agreement under clause 12.2.
9.3 The Executive acknowledges that the Executive is not entitled to any
payment from the Company if this Agreement is terminated under clause 9.3
except for:
(a) any remuneration due under clause 4 but unpaid at the date of the
termination; and
(b) any amount required under clause 12.2 to be paid; and
(c) any amount required under applicable law to be paid less any amount
required under clause 12.2 to be paid.
10. Confidential information and Intellectual Property
10.1 The Executive may use Confidential Information solely for the purpose of
performing the Executive's duties with the Company.
10.2 The Executive must keep confidential all Confidential Information but may
disclose Confidential Information to:
(a) persons who
(i) are aware and agree that the Confidential Information must be
kept confidential; or
(ii) have signed any confidentiality agreement required by the
Company from time to time;
and either:
(iii) have a need to know relative to the operation of the business
(and only to the extent that each has a need to know); or
(iv) have been approved by the person or persons nominated by the
Company from time to time.
(b) that the Executive is required to disclose in the course of the
Executive's duties with the Company;
(c) that was public knowledge when this Agreement was signed or became so
at a later date (other than as a result of a breach of confidentiality
by the Executive); or
(d) that the Executive is required by law to disclose.
10.3 The Executive must immediately notify the Company of any suspected or
actual unauthorised use, copying or disclosure of Confidential Information.
10.4 The Executive must provide assistance reasonably requested by the Company
in relation to any proceedings the Company may take against any person for
unauthorised use, copying or disclosure of Confidential Information.
11. Assignment of Intellectual Property
11.1 The Executive:
(a) presently assigns to the Company all existing and future Intellectual
Property Rights in all inventions, models, designs, drawings, plans,
software, reports, proposals and other materials created or generated
by the Executive (whether alone or with the Company, its other
employees or contractors) for use by the Company, and
(b) acknowledges that by virtue of this clause all such existing rights
are vested in the Company and on their creation, all such future
rights will vest in the Company.
11.2 The Executive must do all things reasonably requested by the Company to
enable the Company to assure further the rights assigned under clause 11.1
12. Termination
12.1 Subject to clauses 9.3 and 13, the Executive's employment may be terminated
after three years from the date of commencement of the Executive's
employment under this agreement:
(a) by the Executive giving to the Company three months' notice; or
(b) by the Company giving to the Executive three months' notice.
12.2 The Executive's employment may be terminated at any time:
(a) by the Executive giving to the Company 6 months' notice or by
forfeiting an amount equal to the Executive's Total Remuneration for
that period of notice; or
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(b) by the Company giving to the Executive 6 months' notice or by paying
the Executive an amount equal to the Executive's Total Remuneration in
lieu of notice.
12.3 The Executive's employment may be terminated by the Company at any time
without notice if the Executive:
(a) disobeys a lawful direction of the Company.
(b) is guilty of other serious misconduct.
(c) breaches clause 10;
(d) other than clause 10, breaches any other material provision of this
Agreement including clauses 3.1 or 3.2; or
(e) is found guilty by a court of a criminal offense.
12.4 Termination under this clause does not affect any accrued rights or
remedies of either party.
13. Redundancy
If the Executive's employment is terminated for redundancy, the Executive
agrees that:
(a) clause 12.2 will apply; and
(b) the Executive is not entitled to any payment from the Company except
for:
(i) any remuneration due under clause 4 but unpaid at the date of
the termination;
(ii) any amount required under clause 12.2 to be paid; and
(iii) any amount required under applicable law to be paid less any
amount required under clause 12.2 to be paid.
14. What Happens After Termination of Employment
If the Executive's employment is terminated for any reason:
(a) the Company may set off any amounts the Executive owes the Company
against any amounts the Company owes the Executive at the date of
termination except for amounts the Company is not entitled by law to
set off;
(b) the Executive must return all the Company's property (including
property leased by the Company) to the Company on termination
including all written or machine readable material, software,
computers, credit cards, keys and vehicles.
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(c) the Executive's obligations under clause 10 continue after termination
except in respect of information that is part of the Executive's
general skill and knowledge; and
(d) the Executive must not record any Confidential Information in any form
after termination.
15. Restraint on the Executive's Conduct
15.1 During the Restraint Period, the Executive must not in any area in which
the Company has operated during the preceding 24 months or to the
Executive's knowledge intends to operate in the ensuing 24 months.
(a) engage or prepare to engage in any business or activity that is the
same or similar to that part or parts of the business carried on by
the Company in which the Executive was employed at any time during the
Executive's last 24 months with the Company; or
(b) solicit, canvass, approach or accept any approach from any person who
was at any time during the Executive's last 24 months with the Company
a client of the Company in that part or parts of the business carried
on by the Company in which the Executive was employed with a view to
obtaining the custom of that person in a business that is the same or
similar to the business conducted by the Company, or
(c) interfere with the relationship between the Company and its customers,
employees or suppliers; or
(d) induce or assist in the inducement of any employee of the Company to
leave their employment.
15.2 In clause 15.1, "Restraint Period" means:
(a) 12 months after termination of the Executive's employment;
(b) 9 months after termination of the Executive's employment;
(c) 6 months after termination of the Executive's employment.
15.3 Clause 15.1 has the effect of several separate and individual covenants and
restraints consisting of each separate covenant and restraint set out in
clause 15.1 combined with each separate period of time set out in clause
15.2.
15.4 If any of the several separate and independent covenants and restraints
referred to in clause 15.3 are or become invalid or unenforceable for any
reason, then that invalidity or unenforceability will not effect the
validity of enforceability of any of the other separate and independent
covenants and restraints.
15.5 In clause 15.1 "engage in" means to participate, assist or otherwise be
directly or indirectly involved as a member, shareholder, unitholder,
director, consultant, advisor, contractor, principal, agent, manager,
employee, beneficiary, partner, associate, trustee or financier.
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15.6 The Company may require the Executive to provide evidence confirming to the
satisfaction of the Company that the Executive is not in breach of this
clause.
15.7 The Executive acknowledges that each restriction specified in clause 15.1
is in the circumtances reasonable and necessary to protect the Company's
legitimate interests.
16. Compliance
The exercise of or compliance with any discretion, right or obligation
under this Agreement is subject to compliance with all applicable laws.
17. Severability
Part or all of any clause of this Agreement that is illegal or
unenforceable will be severed from this Agreement and the remaining
provisions of this Agreement continue in force.
18. Waiver
The failure of either party at any time to insist on performance of any
provision of this Agreement is not a waiver of its right at any later time
to insist on performance of that or any other provision of this Agreement.
19. Notice
19.1 A party giving notice under this Agreement must do so in writing.
19.2 A notice given in accordance with clause 19.1 is taken to be received:
(a) if hand delivered, on delivery;
(b) if sent by prepaid post 3 days after the date of posting;
(c) if sent by telex, when the machine on which the telex is transmitted
receives at the end of transmission, the answerback code of the
recipient unless, within 3 Business Hours after that transmission, the
recipient informs the sender that it has not received the entire
notice.
20. Governing Law
This Agreement is governed by the law applicable in the United States of
America and the parties irrevocably and unconditionally submit to the
exclusive jurisdiction of the courts of the United States of America
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21. Entire Agreement
This Agreement (including its schedules):
(a) constitutes the entire agreement between the parties as to its subject
matter; and
(b) in relation to that subject matter, supersedes any prior understanding
or agreement between the parties and any prior condition, warranty,
indemnity or representation imposed, given or made by a party.
22. Alteration
This Agreement (including its schedules) may only be altered in writing
signed by each party.
23. This Agreement is Confidential
The terms of this Agreement and any subsequent amendments are confidential
any may not be disclosed by the Executive to any other person, other than
for the purpose of obtaining professional legal or accounting advice,
without the written approval of the Company.
24. Headings
Headings are for ease of reference only and do not affect the meaning of
this Agreement.
SCHEDULE 1 - Total Remuneration (Clause 4.1)
The Company must pay the Executive on a monthly basis an amount to be determined
by the Remuneration Committee of the Company from time to time for each Sale
during the preceding calendar month. The initial rate must be determined by
Remuneration Committee within 30 days of the close of the initial public
offering by the Company. The Executive may request the Company from time to time
to pay part or all of the Total Remuneration by way of life insurance,
superannuation, contributions to a pension plan, income protection insurance or
such other components as may otherwise be agreed between the parties.
SCHEDULE 2 - Options (Clause 5)
As determined by resolution of the Board of Directors from time to time pursuant
to the terms and conditions of the Company's Option Plan.
SCHEDULE 3 - Bonus (Clause 6)
As determined by resolution of the Board of Directors from time to time
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EXECUTED as an agreement.
SIGNED on behalf of HOME )
SECURITY INTERNATIONAL, INC. by )
its President, XXXXXXXX XXXXXXXX )
in the presence of )
--------------------------------- ---------------------------------
Witness Xxxxxxxx Xxxxxxxx
---------------------------------
Name of witness (print)
SIGNED by XXXXX XXXXXXX )
in the presence of )
/s/ Xxxxxxxx Xxxxxxx /s/ Xxxxx Xxxxxxx
--------------------------------- ---------------------------------
Signature of witness Xxxxx Xxxxxxx
Xxxxxxxx Xxxxxxx
---------------------------------
Name of witness (print)
