2003
EXECUTIVE SERVICE AGREEMENT
Atlantic Security Incorporated
and
XXXXX XXXXXX XXXXX
1. CONTENTS
1. Interpretation 1
2. Commencement and duration 1
3. Payment in lieu of notice 1
4. Job description and duties 1
5. Job location 3
6. Hours of work 3
7. Remuneration and benefits 3
8. Pensions 4
9. Expenses 4
10. Sickness 4
11. Holidays 4
12. Confidentiality 5
13. Intellectual property 6
14. Dismissal 7
15. Effects of termination 8
16. Garden leave and suspension 9
17. Grievance procedure 9
18. Restrictions 9
19. Collective agreements 11
20. General provisions 11
Schedule 1
Definitions and interpretation 12
DATE: 1st October 2003
PARTIES:
(1) Atlantic Security Incorporated (registered 00 Xx Xxxxx Xxxxxx.
Xxxxxxxxxxx XX (Company); and
(2) Xxxxx Xxxxxx Xxxxx (Executive) of 00000 Xxxxx Xxxxx Xxxx Xxxxxxx,
XX, 00000 XXX.
2. Interpretation
2.1 The definitions and interpretative provisions in schedule 1
apply to this agreement.
3. Commencement and duration
3.1 The Executive's employment will commence on 6th October
2003. No previous service with any previous employer counts
as part of the Executive's continuous service with the Company.
3.2 The Executive warrants and represents to the Company that by
entering into this agreement he will not be in breach of any
existing or former terms of employment, whether express or
implied, or of any other obligation binding on the
Executive, and any other appointment with the Company will
cease at the date of this agreement.
3.3 The Executive's employment will, unless otherwise terminated
in accordance with this agreement, be for a open period from
the Commencement Date and will continue from then on, unless
and until terminated by either party giving to the other not
less than one months' (30 calendar days) written notice,
such notice not to be given prior to the expiry of the fixed period.
3.4 The Executive's employment will in any event terminate
without further notice on the Executive's 70th birthday
unless agreed to extend by the board.
4. Payment in lieu of notice
4.1 Without prejudice to its rights under clause 15, the Company
reserves the right, at its sole discretion, to terminate
this agreement with immediate effect, or with less notice
than that required pursuant to clause 2.3, with a payment in
lieu of notice equal to the amount of salary (after
deduction of income tax and national insurance contributions
where applicable) that would be due for the unexpired period
of notice.
5. Job description and duties
5.1 The Executive will serve the Group as President of North
American Division as well as the Chief Operating Officer
(COO) to the Group Chief Executive Officer (CEO), subject to
the direction of the CEO, will carry out such duties for the
Company and any Group Company as the CEO may from time to
time require.
5.2 The Executive will also be appointed as a Director to the
Atlantic Security Incorporated (ASI) Board of Directors and
will be required to attend board meetings, to prepare and
circulate to the Chief Executive's reports at least three
days prior to each Board meeting, and to generally report to
and supply the CEO with such information concerning the
Company's affairs as is required.
5.3 In particular, the Executive will be responsible for:
5.3.1 The development of a business plan within 30 days
of the Commencement Date, which will incorporate a
comprehensive budget and a fund raising strategy.
The business plan will be presented to the CEO by
the Executive, and will be implemented subject to
the Board's ratification;
5.3.2 All matters relating to the Company's employees,
including recruitment, dismissal and disciplinary
matters. The Executive will be expected to attract
senior personnel, initially on a part time basis
and subsequently on a full time basis, to fill
certain key roles within the Company.
5.4 The Executive will:
5.4.1 promptly and competently serve the Company in good
faith and promote the interests of the Company and
the Group Companies;
5.4.2 give to the CEO or such persons as the CEO may
nominate for the purpose, as and when requested,
such information regarding the affairs of the
Company or any Group Company as it or they may
reasonably require;
5.4.3 at all times conform to the reasonable directions
of the CEO or Board or of anyone duly authorised by it;
5.4.4 behave at all times in a fit and proper manner
consistent with the high profile and good
reputation of the Company and do nothing which may
damage such profile or reputation or bring the
Company or any Group Company into disrepute; and
5.4.5 at all times exercise reasonable care and skill in
the performance of his duties.
5.5 The Executive will not, without the prior written consent of
the CEO or Board:
5.5.1 incur on behalf of the Company or any Group Company
any capital expenditure in excess of 5,000 pounds or such
other sum as may be authorised from time to time by
resolution of the Board;
5.5.2 enter into on behalf of the Company or any Group
Company any commitment, contract or arrangement
which is otherwise than in the normal course of
business or is outside the scope of his normal
duties or is of an unusual or onerous or long-term
nature; or
5.5.3 engage any person on terms, which vary from those,
established from time to time by resolution of the
Board.
5.6 The whole of the Executive's working time, attention and
abilities will be devoted to the business and affairs of the
Company and of any relevant Group Company.
6. Job location
6.1 The Executive's employment will be based at the Company's
office in the USA, or at such other place as may be
designated within the group.
6.2 The Executive will undertake such travel inside and outside
the United States as the CEO may reasonably require and as
may be necessary for the proper performance of his duties.
7. Hours of work
7.1 The normal hours of business of the Company are from 9.00 am
until 5.30 p.m. on each weekday excluding statutory and
public holidays. The Executive's working time is unmeasured
and he is required to work such hours as are necessary to
perform properly his duties.
8. Remuneration and benefits
8.1 The Company will pay to the Executive a gross salary of
$100,000 per annum which will accrue from day to day and be
payable by equal monthly instalments in arrears on the last
business day of each month by cheque or, at the Company's
option, by direct credit transfer to the Executive's
nominated bank or building society account. Such salary is
inclusive of any fees receivable by the Executive as a
director of the Company and any Group Company.
8.2 The Board will review the salary annually on 17th April in
the light of Company performance, the Executive's
contribution to it, and inflation. The Executive agrees
that the undertaking of a salary review does not confer a
right to an increase in salary. In the event that the
Executive's employment is terminated wrongfully by the
Company, the Executive agrees that any entitlement to
compensation on the part of the Executive will not include
any element to reflect any salary increases that the
Executive may have received had his employment under this
agreement continued for the duration of the notice period
referred to in clause 2.3.
8.3 The Executive will be entitled to subscribe for shares in
the Company on such terms as may be agreed between the
parties.
8.4 Any benefits provided by the Company to the Executive or the
Executive's family which are not expressly referred to in
this agreement will be regarded as ex-gratis and at the
entire discretion of the Company and will not form part of
the Executive's contract of employment.
8.5 The Executive authorises the Company to deduct from any
salary or other payment, including any payment on
termination of employment, any sums properly due from the
Executive to the Company including, without limitation, the
repayment of any loans, advances, repayable or unauthorised
expenses, excess holiday pay, overpayment of salary,
commission or other benefits.
9. Pensions
9.1 There is no Company pension scheme in which the Executive is
entitled to participate. But the Company will conform to the
laws and requirements of country schemes.
10. Expenses
10.1 The Company will reimburse the Executive on a monthly basis
for all reasonable travelling, hotel and other out-of-pocket
expenses exclusively and properly incurred in performing
duties under this agreement, and for which receipts and an
expense claim form, if so required, are provided to the
reasonable satisfaction of the Board.
10.2 Any credit card supplied to the Executive by the Company
will be used only for expenses incurred by him in the course
of his employment and in accordance with the Company's
regulations from time to time.
11. Sickness
11.1 The Executive must, if at any time prevented from working by
illness or accident, immediately inform the CEO of the Board
of Directors. If the incapacity continues for more than
seven days, including non-working days, the Executive must
send to the Company a certificate of sickness signed by a
registered medical practitioner on the eighth day of
incapacity and weekly from then on.
11.2 Subject to compliance with clause 10.1, the Executive will
be entitled to receive full salary, inclusive of any
statutory sick pay, for the first 13 weeks of incapacity and
half salary, inclusive of any statutory sick pay, for the
next 13 weeks of incapacity either continuously or in any 12
month period less any payments received by the Executive in
respect of sickness benefit and any company-provided
permanent health insurance in respect of the period
concerned.
11.3 Subject to clause 11.2 and any continuing statutory sick pay
entitlement, the Executive will not be entitled to receive
any further remuneration during periods of absence due to
illness or incapacity and any payment during such period in
excess of such entitlement will be at the discretion of the
Company.
11.4 At any time required by the Board, the Executive agrees to
undergo, at the expense of the Company, a medical
examination by a medical adviser nominated by the Board and
the Executive consents to the medical adviser disclosing the
results of the examination to the Company.
12. Holidays
12.1 In addition to statutory and public holidays, the Executive
will be entitled to 20 working days holiday exclusive of
statutory holidays in every calendar year to be taken at
such times as are convenient to the Company and are approved
by the CEO.
12.2 Holiday entitlement accrues at the rate of 1/12th of the
annual entitlement for each completed month of service in
any year.
12.3 On the termination of this agreement, the Executive will be
entitled to remuneration in lieu of holiday entitlement
accrued but not taken as at the Termination Date for that
year, or will be required to account to the Company in
respect of any holiday taken in excess of accrued
entitlement as at the Termination Date.
12.4 The Executive will not be entitled to carry forward any
accrued holiday entitlement from one calendar year to the
next without the prior written consent of the Company.
12.5 The Executive must ensure that there is adequate managerial
cover during any period of absence.
13. Confidentiality
13.1 During the Term and at all times after the Termination Date
the Executive will:
13.1.1 keep secret all Confidential Information;
13.1.2 not communicate or disclose any Confidential
Information to any person;
13.1.3 not use Confidential Information for the
Executive's own purposes or for any purposes other
than those of the Company;
13.1.4 use best endeavours to prevent any unauthorised
publication, disclosure or use of any Confidential
Information.
13.2 For the purposes of this clause Confidential Information
means any information of a secret, confidential or private
nature in any form concerning the Company or any Group
Company that has been obtained by the Executive by virtue of
his employment with the Company and that relates to any of
the following:
13.2.1 research and developments;
13.2.2 methods of manufacture or production including
quality controls;
13.2.3 suppliers and their production and delivery
capabilities;
13.2.4 customers and details of their particular
requirements;
13.2.5 costings, profit margins, discounts, rebates and
other financial information;
13.2.6 marketing strategies and tactics;
13.2.7 current activities and current and future plans
relating to development, production or sales;
13.2.8 development of new products;
13.2.9 production or design secrets;
13.2.10 technical design or specifications of products; or
13.2.11 pricing, credit policies, credit procedures,
payment procedures and systems.
13.3 The restrictions in clause 13.1 will not apply to:
13.3.1 any disclosure required for the proper performance
of the Executive's duties during the course of
employment by the Company or as authorised by the
Board;
13.3.2 any disclosure made to any person authorised by the
Company to possess the relevant information;
13.3.3 information or knowledge that was known to the
Executive prior to the Commencement Date; and
13.3.4 information that is in the public domain, other
than through the fault of the Executive.
13.4 The Executive will, immediately upon request, deliver to the
Company without retaining or making any copies, all
documents, data or material, correspondence, notes,
memoranda, records, reports, agreements, or programmes in
any format and on whatever media made by the Executive and
relating to the Company or any Group Company.
13.5 Any breach of the restrictions in clause 13.1 will be
treated by the Company as gross misconduct entitling the
Company to terminate the Executive's employment summarily in
accordance with clause 15.1.
13.6 The restrictions in clause 13 will continue to apply after
the termination of this agreement without limit in time.
14. Intellectual property
14.1 Any Intellectual Property which is created by the Executive
during or in the course of his employment or relating to,
resulting from or suggested by any work which the Executive
does for the Company or any Group Company during his
employment will be and remain the property of the Company.
14.2 The Executive shall immediately:
14.2.1 upon creation of any Intellectual Property,
disclose and deliver to the Company, or as it may
direct, all information and data in his possession
or under his power or control, necessary for a full
understanding, application and, where applicable,
registration of the Intellectual Property;
14.2.2 disclose any Intellectual Property which he has
created previously, or which he created other than
in the course of his employment; and
14.2.3 upon receipt of a written request from the Company,
except for any payment to which he may be entitled
under section 40 Patents Xxx 0000, without charge
to, but at the cost and expense of the Company,
execute all documents and do all such things as may
be necessary to obtain, or assist the Company to
obtain, any patent or other protection for the
Intellectual Property in any or all countries and
to vest title to it in the Company free from any
adverse rights or claims.
14.3 To the extent that they do not vest in the Company by
operation of law or under this agreement, the Executive
assigns to the Company the following rights, title and
interests including as a present assignment of future
rights, with full title guarantee, free from any adverse
rights or claims, to hold for such time as the rights, title
and interests subsist and any renewals and extensions of
them and after that in perpetuity:
14.3.1 the rights, title and interests he has, or will
have in the future, to the Intellectual Property
created by him during or in the course of his
employment; and
14.3.2 all rights of action for damages for infringement
of the Intellectual Property.
14.4 The Executive further irrevocably and unconditionally waives
any and all moral rights to the Intellectual Property under
the Copyright Designs and Patents Xxx 0000 chapter IV or any
rights of a similar nature under any law in any other
jurisdiction.
14.5 The Company will be under no obligation to apply for or seek
to obtain patent, design or other protection in relation to
any Intellectual Property or in any way to use exploit or
seek to benefit from it.
15. Dismissal
15.1 The Company will be entitled to terminate the Executive's
employment with immediate effect, without prior notice and
without payment in lieu of notice, if the Executive:
15.1.1 commits an act of gross misconduct, including
without limitation dishonesty, or is guilty of
conduct which in the opinion of the Board brings or
might bring the Executive or the Company or any
Group Company into disrepute;
15.1.2 commits any material breach of any term of this
agreement, (including without limitation, any
breach of clauses 13 and/or 14) which is either not
capable of remedy or is not remedied within 30 days
after notice from the Company specifying the breach
and requiring its remedy;
15.1.3 has an order made by any competent court for the
appointment of a receiver or any other person to
exercise powers in respect of his property or
affairs, is adjudged bankrupt or makes any
arrangement or composition with his creditors
generally;
15.1.4 is convicted of any criminal offence, other than a
minor motoring offence that does not prevent the
Executive performing his duties;
15.1.5 becomes of unsound mind or otherwise unable to
perform his duties due to problems of mental
health;
15.1.6 is convicted of an offence relating to insider
dealing or is in breach of the model codes on
directors' dealings in listed securities adopted by
the Company or any Group Company;
15.1.7 is disqualified from acting as a director in any
company or otherwise than with the consent of the
Company, resigns as a director of the Company
and/or any Group Company;
15.1.8 is, in the reasonable opinion of the Board,
incapable of properly performing his duties under
this agreement if the Executive has been given due
warning by the Company of his incapability and has
failed within the specified period to have met the
required standard;
15.1.9 without reasonable cause wilfully neglects or
refuses to discharge his duties or to attend to the
business of the Company and/or any Group Company.
15.2 If the Executive's employment is terminated in accordance
with clause 15.1, the Executive will not be entitled to any
further payment or compensation, except sums which have
already become due.
16. Effects of termination
16.1 Termination of this agreement by the Company is without
prejudice to any claim that the Company may have for damages
arising from any breach by the Executive of this agreement.
16.2 Upon termination for whatever reason:
16.2.1 the Executive will deliver to the Company all
notes, memoranda, records and other correspondence,
documents, papers and property in any format
belonging to the Company or any other Group Company
or any of their clients which may have been
prepared by or have come into the possession of the
Executive during the course of or as a result of
employment with the Company, and will not retain or
permit any other person to retain copies or
extracts of them in any format; and
16.2.2 without prejudice to any rights that the Executive
may have to compensation, damages or otherwise, the
Executive will, immediately upon request by a
majority of the Board, resign from all offices held
by him in the Company or any Group Company at the
Termination Date, including, but not limited to the
office of director or company secretary. If the
appropriate resignations are not signed and
delivered by the Executive to the Board within
seven days after such request, the Board may
appoint any one of its number to sign the notice of
resignation as attorney for and on behalf of the
Executive and the Executive irrevocably appoints
any of the other members of the Board as the
Executive's attorney for such purpose.
16.3 The Executive will have no claim against the Company if
this agreement is terminated by reason of the liquidation of
the Company for the purpose of reconstruction or
amalgamation and the Executive is offered employment with
any concern or undertaking resulting from such
reconstruction or amalgamation on terms which are
substantially the same as the terms of this agreement.
17. Garden leave and suspension
17.1 During any period of notice given by either party pursuant
to clause 2.3 or during the six months prior to the expiry
of the fixed term referred to in clause 2.3, the following
will apply:
17.1.1 the Company will be under no obligation to allow
the Executive to exercise any powers or duties or
to provide work for the Executive;
17.1.2 the Company may, in its discretion, suspend the
Executive including, without limitation, requiring
the Executive not to contact any customers,
clients, suppliers or employees of the Company or
any Group Company;
17.1.3 the Company may, in its discretion, exclude the
Executive from any premises of the Company or any
Group Company;
17.1.4 the Company may, in its discretion, require the
Executive to resign from any office in the Company
and any Group Company;
17.1.5 the Executive will continue to be entitled to
salary and benefits; and
17.1.6 the Executive will remain an employee of the
Company and will continue to comply with all
obligations so far as reasonably practicable.
18. Grievance procedure
18.1 If the Executive is dissatisfied with any matter relating to
his employment with the Company he should appeal in the
first instance in person to the Chairman of the Board of
Directors. If the matter is not resolved within seven days,
the Executive may appeal to the whole Board and be heard at
a meeting of the Board whose decision will be final and
binding.
19. Restrictions
19.1 The Executive undertakes with the Company that during the
Term he will not directly or indirectly:
19.1.1 solicit the custom of, canvass, approach or deal
with any person in competition with the Company or
any Group Company;
19.1.2 discourage any client, supplier or contractor of
the Company or any Group Company from conducting or
continuing to conduct business with the Company or
any Group Company on the best terms available to
the Company or any Group Company;
19.1.3 solicit or entice away or endeavour to solicit or
entice away from the Company or any Group Company
any director or executive employee of the Company
or any Group Company with whom the Executive has
had dealings during the Term.
19.2 The Executive undertakes with the Company, for itself and as
trustee for each Group Company that he will not, for a
period of 12 months after the Termination Date, directly or
indirectly:
19.2.1 solicit the custom of, canvass, or approach a
Client in relation to any business carried out by
the Company or any Group Company in which the
Executive was materially involved in the 12 months
prior to the Termination Date;
19.2.2 deal with a Client in relation to any business
carried out by the Company or any Group Company
during the 12 months prior to the Termination Date;
19.2.3 induce or attempt to induce any Client to cease
conducting business with the Company or any Group
Company or to reduce the amount of business
conducted with the Company or any Group Company or
adversely to vary the terms upon which its business
is conducted with the Company or any Group Company;
19.2.4 solicit or entice away or endeavour to solicit or
entice away any director or employee of the Company
or any Group Company with whom the Executive has
had material dealings during the 12 months prior to
the Termination Date; or
19.3 The Executive will not at any time after the Termination
Date hold himself out as being connected with or use any
trading name or style which may suggest a connection with
the Company or any Group Company.
19.4 For the purposes of clause 19.2 Client means any customer,
supplier or client of the Company or any Group Company with
whom the Executive or a member of the Executive's team with
the knowledge of the Executive has had material dealings
during the 12 months prior to the Termination Date.
19.5 The Executive undertakes with the Company for itself and as
trustee for each Group Company that, during the Term and for
a period of 6 months after the Termination Date, he will not
directly or indirectly be engaged, interested or concerned
other than as holder of shares, which confer not more than
three per cent (3%) of the voting rights in a company that
is listed on a Recognised Investment Exchange, in any firm,
or company or business carrying on a business which is
similar to the business of the Company or any Group Company
within the United Kingdom.
19.6 The Executive agrees that the restrictions contained in
clause 19 are reasonable to protect the legitimate business
interests of the Company and the Group Companies.
19.7 The Executive will not induce, procure or assist any other
person, firm, corporation or organisation to do anything
which if done by the Executive would be a breach of any of
the provisions of clause 19.
19.8 In clauses 19.1, 19.2 and 19.5 references to acting directly
or indirectly will include, without prejudice to the
generality of that expression, references to acting alone,
jointly with, on behalf of, by means of or by the agency of
any other persons.
20. Collective agreements
20.1 There are no collective agreements that affect the terms and
conditions of the Executive's employment.
21. General provisions
21.1 Any notice or other communication given under this agreement
must be in writing delivered personally or sent by first
class post or transmitted by fax, with a confirmatory copy
sent by first class post, to the relevant party's address
specified in this agreement or to such other address and fax
number as either party may have last notified to the other.
Any notice or other communication is deemed to have been
duly given on the day it is delivered personally, or the
second Business Day following the date it was sent by post,
or on the next Business Day following transmission by fax.
21.2 This document and the documents referred to in it,
constitute the entire agreement between the parties and
supersede all other agreements or arrangements, whether
written or oral, express or implied, between the parties.
No variations of this agreement are effective unless made in
writing signed by both parties and their authorised agents.
21.3 Neither party will be affected by any delay or failure in
exercising or any partial exercising of his rights under
this agreement unless he has signed an express written
waiver or release.
21.4 If any provision of this agreement is or becomes illegal,
invalid or unenforceable under the law of any jurisdiction,
that will not affect or impair:
21.4.1 the legality, validity or enforceability in that
jurisdiction of any other provision of this
agreement; or
21.4.2 the legality, validity or enforceability under the
law of any other jurisdiction of that or any other
provision of this agreement.
21.5 The rights, powers and remedies provided in this agreement
are cumulative and not exclusive of any rights, powers and
remedies provided by law. The exercise or partial exercise
of any right, power or remedy provided by law or under this
agreement will not preclude any other or further exercise of
it or the exercise of any other right, power or remedy.
21.6 This agreement is to be governed by and construed in
accordance with English law.
Schedule 1
Definitions and interpretation
1. The provisions of schedule 1 apply to the interpretation of this
agreement including the schedules.
2. The following words and expressions have the following meanings:
Board the board of directors of the
Company from time to time or any
committee of the board from time to
time to which powers have been
properly delegated.
Business Day A day between Monday and Friday,
inclusive, on which clearing banks
are open in the City of London.
CA 1985 UK Companies Xxx 0000.
Client as defined in clause 19.4.
Commencement Date the date the Executive's employment
commences under this agreement as
set out in clause 3.1.
Confidential Information as defined in clause 13.2.
Group Company the Company, its Holding Company, if
any, and any of the Subsidiaries of
the Company or of any such Holding
Company from time to time.
Holding Company as defined in section 736 UKCA 1985.
Intellectual Property all patents, patent applications,
utility models, know-how,
trademarks, service marks, trade and
service xxxx applications, trade
names, domain names, registered
designs, design rights, copyrights
or other similar industrial,
intellectual or commercial rights
subsisting anywhere in the world
relating to the business of the
Company or any Group Company.
Recognised Investment Exchange as defined in the UK Financial
Services Xxx 0000.
Subsidiary as defined in section 736 UKCA 1985.
Term the period from the Commencement
Date until the Termination Date.
Termination Date the actual date of termination of
this agreement.
3. All references to a statutory provision includes references to:
3.1 any statutory modification, consolidation or re-enactment of
it, whether before or after the date of this agreement, for
the time being in force;
3.2 all statutory instruments or orders made pursuant to it; and
3.3 any statutory provision of which that statutory provision is
a re-enactment or modification.
4. Words denoting the singular include the plural and vice versa and
words denoting any gender include all genders.
5. The clause headings are for ease of reference only and do not
affect the construction of this agreement.
6. Unless otherwise stated, a reference to a clause, party or a
schedule is a reference to respectively a clause in or a party or
schedule to this agreement.
Executed and delivered as a deed
by Atlantic Security Incorporated
acting by two directors or one director
and its secretary:
/s/ Director Xxxxxxx Xxxxxxxx CEO/Chairman
------------------------------------------
/s/ Secretary Xxxxxxx Xxxx
--------------------------
Executed and delivered as a deed
By:
/s/ Xxxxx Xxxxxx Xxxxx
-------------------------
Xxxxx Xxxxxx Xxxxx
ASI
Chief Operating Officer/Americas President/Board Director
in the presence of:
/s/ Xxxxxx X. Xxxxx
---------------------
Name: Xxxxxx X. Xxxxx
Address: 0000 Xxxxxx Xxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx 00000 XXX
Occupation: Partner, HMS, LLC
