Exhibit 10.2
THIS AGREEMENT is made the 1st day of January One Thousand Nine Hundred and
Ninety Six between Realm Investments Limited whose registered office is situate
Xxxxxxxx Xxxx, 0xx Xxxxx, 00 Xxxxxxxx Xxxxxx, Xxxxxxxx XX0 Xxxxxxx (hereinafter
called the "Company") of the one part and Xxxxxxxx Xxxx Xxxxx (hereinafter
called the "Chief Executive Officer") of the other part.
IN this Agreement the following expressions have the following meanings:
"The Board" means the Directors of the Company present at a meeting of the
Directors or of a committee of the Directors duly convened and held.
"Subsidiary" means any company which for the time being is a subsidiary
company (as such expression is defined by Section 86 of The Companies Act
1981 of Bermuda) of the Company.
"Associated Company" means; any company which for the time being is a
holding company (as such expression is defined by Section 86 of The
Companies Act 1981 of Bermuda) of the Company or any subsidiary of any such
holding company.
WHEREBY IT IS AGREED as follows:
1. TERM OF APPOINTMENT
The executive shall serve the Company as its Chief Executive Officer
subject to clauses 12 and 13 hereof for the period of three years from 1st
January 1996 ("the initial term") and thereafter unless and until his
employment shall at any time be terminated in accordance with clauses 12 or
13 or by either party giving to the other not less than 12 months prior
written notice of termination expiring on or after the expiry of the
initial term.
2. POWERS AND DUTIES
(A) The Chief Executive Officer shall exercise such powers and perform such
duties (not being duties inappropriate to his status) in relation to the
business of the Company or any Associated Company as may from time to time
be reasonably vested in or assigned to him by the Company. The Chief
Executive Officer shall comply with all reasonable directions from, and all
regulations of the Company. The Chief Executive Officer shall be entitled
to bind the Company in accordance with the policies of the Board and the
shareholders agreement between the Company and Xxxxxxx Xxxxx (as defined in
the Shareholders Agreement) in respect of such matters as shall from time
to time be necessary for him to carry out his duties and represent the
Company in its day to day dealings.
(B) The Chief Executive Officer shall work such hours as may reasonably be
required for the proper performance of his duties, whether or not within
normal working hours and shall devote the whole of his time, attention and
abilities during those hours to carrying out his duties in a proper, loyal
and diligent manner.
(C) The Chief Executive Officer's normal place of work shall be at the offices
of the Company in Bermuda.
(D) The Chief Executive Officer shall travel to such places in such manner and
on such occasions as the Company may from time to time reasonably require
for the proper performance of his duties hereunder.
(E) The Company shall be under no obligation to vest in or assign to the Chief
Executive Officer any powers or duties or to provide any work for the Chief
Executive Officer and the Company may at any time or from time to time in
circumstances in which it reasonably believes that the Chief Executive
Officer is guilty of misconduct or in breach of this Agreement in order
that the circumstances giving rise to that belief may be investigated
suspend the Chief Executive Officer from the performance of his duties or
exclude him from any premises of the Company subject to the Company giving
him its reason in writing for so doing. No such suspension or exclusion
shall continue for more than 28 days. Salary will not cease to be payable
by reason of such suspension or exclusion.
(F) Should the Company suspend or exclude the Chief Executive Officer under
Clause 3(E) of this Agreement the period of such suspension shall be
deducted from the one year periods referred to in clauses 9(A) and 10(B)
hereof.
3. SALARY
(A) The Chief Executive Officer shall be paid monthly in arrears for his
services during his employment a salary (which shall a accrue from day to
day) at the rate of US $300,000 per annum or at such higher rate or rates
as the Board may from time to time determine and notice to the Chief
Executive Officer in writing.
(B) The Chief Executive Officer shall also be paid such annual bonuses as the
Board may from time to time determine.
(C) The Company shall review the salary payable under this Agreement in
December of each year with a view to increasing it, but shall not be
obliged to increase it.
(D) The Chief Executive Officer shall not be entitled to any other salary or
fees as an ordinary executive director or employee of the Company or of any
Associated Company and the Chief Executive Officer hereby waives any
entitlement or right which he might otherwise have to any such salary or
fees.
-page 3-
(E) In addition to public holidays the Chief Executive Officer will be entitled
to 25 days holiday in every calendar year to be taken at such time or times
as may be approved by the Board. If the Chief Executive Officer has less
than 12 months service during the calendar year, this holiday entitlement
is to be calculated on a pro rata basis. Unless and until his employment
under this Agreement shall be determined under any provision thereof salary
will continue to payable during holidays. Holidays not taken during any
calendar year or by the determination of his employment under this
Agreement will be lost. Upon determination of his employment other than
pursuant to clauses 13 (iii) and (vii) hereof, the Chief Executive Officer
will be entitled to pay in lieu of holiday accrued but not taken. If, upon
the termination of his employment with the Company, the Chief Executive
Officer has taken more days holiday than he is entitled to, the Company
shall be entitled to make appropriate deduction from any final payment of
salary.
(F) Subject to production, if requested, of medical certificates satisfactory
to the Company, remuneration will not cease to be payable by reason only of
the Chief Executive Officer's incapacity for work due to sickness or
accident (unless and until his employment under this Agreement shall be
determined under any provision thereof).
(G) During the period of employment the Company shall pay on behalf of the
employee and the Nanny/Housekeeper to his dependent children all payroll
taxes, Government fees and any and all other payments and emoluments
required to be paid by an employer on behalf of employees under Bermuda
Law.
4. CAR
The Company shall during the term of this agreement provide the Chief
Executive Officer with a motor car which shall be replaced once every 3
years or 40,000 miles whichever is the sooner of a type approved by the
Company but which shall be consistent with his position as Chief Executive
Officer of the Company. The Company shall pay for maintenance and repairs,
taxation and insurance for the aforementioned car.
5. OTHER BENEFITS
(A) The Company shall pay the appropriate premiums in respect of the Chief
Executive Officer, his family and the Nanny/Housekeeper of his dependent
children for such medical insurance schemes to which the Company may
subscribe from time to time.
(B) The Chief Executive Officer shall be entitled to be a member of the Company
Pension Scheme and if he joins benefits shall be provided for and in
respect of him thereunder in accordance with the plan for the time being in
force. If the Chief Executive officer so elects the Company shall pay sums
equivalent to that which would be payable into a Company pension scheme (8%
of his basic salary) into an alternative personal pension scheme for the
benefit of the Chief Executive Officer.
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(C) The Chief Executive Officer shall have up to three (3) return air fares per
annum paid by the Company to and from the UK for him and his spouse and
dependent children paid by the Company.
(D) The Company shall maintain Personal Accident Insurance and Permanent Total
Disability Coverage in respect of the Chief Executive Officer for the sum
of four (4) times his annual salary the beneficiaries of which shall be
directed from time to time by the Chief Executive Officer.
6. EXPENSES
The Company will reimburse the Chief Executive Officer against production
of receipts if requested, all reasonable travelling, hotel and other out-
of-pocket expenses properly incurred by him in the performance of his
duties under this Agreement.
7. INVENTIONS AND IMPROVEMENTS
(A) It shall be part of the normal duties of the Chief Executive Officer at all
times:
(i) to consider in what manner and by what new methods or devices the
products, services, processes, equipment or systems of the Company,
or any Associated Company, with which he is concerned or for which he
is responsible might be improved; and
(ii) ensure that the Board is given details of any invention or
improvement which he may from time to time make or discover in the
course of his duties; and
(iii) to further the interests of the Company's undertaking with regard
thereto. The Company shall be entitled free of charge to the sole
ownership of any such invention or improvement and to the exclusive
use thereof.
(B) The Chief Executive Officer shall not either during his employment or
thereafter exploit or assist others to exploit any invention or improvement
which he may from time to time make or discover in the course of his duties
or (unless the same shall become public knowledge) make public or disclose
any such invention or improvement or give any information in respect of it
except to the Company or as it may direct.
8. CONFIDENTIALITY
(A) The Chief Executive Officer shall not, either during the continuance of his
employment or at any time after its termination:
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(i) disclose to any person, firm or corporation any trade secret of the
Company or any Associated Company or any information concerning the
organization, business affairs, or finances of the Company or any
Associated Company, or any information of which he has knowledge or
ought reasonably to have known, to be confidential, concerning
customers or other persons with which the Company or any Associated
Company has dealings, including but not limited to, any customer
lists, price lists, marketing or sales plans or information, designs,
products or research, which may come to his knowledge during the
course of his employment (except where such disclosure is made in the
proper performance of the Chief Executive Officer's duties or is
authorized by the Company or is in compliance with the order of a
competent court); or
(ii) use or attempt to use, for his own purposes or those of any other
person, firm, or corporation any such trade secrets or confidential
information in any manner which may injure or cause loss either
directly or indirectly to the Company or any Associated Company.
(B) The provisions of Clause 8 (A) shall continue to apply after the
termination of the Executive's employment without limit in point of time
but shall cease to apply to information or knowledge which may come into
the public domain through no fault of the Executive.
9. NON-SOLICITATION
(A) The Chief Executive Officer will not for a period of one year after the
termination of his employment with the Company either personally or by an
agent directly or indirectly;
(i) either on his own account or for any other person, firm or company or
in association with or in the employment of any other person, firm or
company solicit or interfere with or endeavor to entice away from the
Company or any Associated Company any person, firm or company who
within one year prior to or at the date of such termination was a
customer of or in the habit of dealing with the Company or any
Associated Company and with whom the Chief Executive Officer had
contact in the course of his employment or
(ii) either on his own account or for any other person, firm or company
solicit or interfere with or endeavor to entice away from the Company
or any Associated Company any person, who, at the date of termination,
was employed in an executive, managerial, technical or sales capacity,
or any person who was a director or consultant of the Company or any
Associated Company at the date of such termination.
-page 6-
(B) The Chief Executive Officer will not at any time after the termination of
his employment with the Company either personally or by an agent directly
or indirectly represent himself as being in any way currently connected
with or interested in the business of the Company or Associated Company.
10. NON-COMPETITION
(A) During his employment the Chief Executive Officer shall not unless
otherwise agreed in writing by the Company) undertake any other business or
profession or be or become an employee or agent of any other company, firm
or person or assist or have any financial interest in any other business or
profession or accept a directorship of any Company other than the Company
(except as already disclosed).The Chief Executive Officer may, however,
hold or acquire by way of bona fide investment only shares or other
securities of any company which are listed or dealt in on any recognized
Stock Exchange. Unless the Company shall require him not to do so in any
particular case on the ground that such other company is or may be carrying
on a business competing or tending to compete with the business of the
Company or any Associated Company.
(B) The Chief Executive Officer will not for a period of one year after the
termination of his employment with the Company either personally or by an
agent directly or indirectly either on his own account or for any other
person, firm or company be engaged in or concerned directly or indirectly
in any executive managerial, technical or advisory capacity in any business
concern (of whatever kind) which is in competition with the business of the
Company or any Associated Company. This clause will not restrain the
Executive from being engaged or concerned, in any business concern in so
far as the Executive's duties, work, activities or service shall consist
solely of:
(i) duties, work, activities or services of a kind with which the
Executive was not concerned or involved in to a material extent during
his employment with the Company or any Associated Company.
11. RETURN OF PAPERS
The Chief Executive Officer shall promptly whenever requested by the
Company and in any event upon termination of his employment deliver up to
the Company all lists of clients or customers, correspondence and all other
documents, papers and records which may have been prepared by him or have
come into his possession, or under his custody or control in the course of
his employment, and the Chief Executive Officer shall not be entitled to
and shall not retain any copies thereof. Title and copyright shall vest in
the Company.
-page 7-
12. DIRECTORSHIP
The removal of the Chief Executive Officer of the Company or the failure of
the Company in general meeting to re-elect the Chief Executive Officer as a
Director of the Company if under the Articles of Association for the time
being of the Company he shall be obliged to retire by rotation or otherwise
shall terminate his employment under this Agreement. Such termination shall
be taken to be a breach by the Company of this Agreement unless at the time
of removal or failure to re-elect the Company was entitled to terminate the
Chief Executive Officer's employment in accordance with clause 12. The
Chief Executive Officer shall not during his employment resign his office
as Director of the Company or Associated Company or do anything which would
cause him. to be disqualified from continuing to act as such a Director.
13. TERMINATION OF EMPLOYMENT
If the Chief Executive Officer:
(i) shall become incapacitated from any cause whatsoever from efficiently
performing his duties hereunder for twelve (12) consecutive months;
or
(ii) shall be or become of unsound mind or be or become a patient for any
purpose of any (or any part thereof) relating to mental health; or
(iii) shall be or become prohibited by law from being a director; or
(iv) shall be guilty of misconduct or shall commit any serious or
persistent breach of any of his obligations to the Company or any
Associated Company (whether under this Agreement or otherwise); or
(v) shall fail or neglect to comply with any reasonable and lawful orders
given to him by the Company; or
(vi) shall fail, in the reasonable opinion of the Board, to perform his
duties competently (after having received prior written warning of
the shortcomings of his performance) then the Company shall be
entitled by notice in writing to the Chief Executive Officer to
terminate forthwith his employment under this Agreement.
(vii) If the employment of the Chief Executive Officer shall be terminated
by reason of the liquidation of the Company for the purpose of
amalgamation or reconstruction or as part of any arrangement for the
amalgamation of the undertaking of the Company not involving
liquidation and the Chief Executive Officer shall be offered
employment with the amalgamating or reconstructed company of a status
and on terms not less favorable to the Chief Executive
-page 8-
Officer than the terms of this Agreement, the Chief Executive Officer
shall have no claim against the Company in respect of the termination
of his employment by the Company hereunder.
Any delay or forbearance by the Company in exercising any right of
termination shall not constitute waiver of it.
14. MISCELLANEOUS
(A) Notwithstanding the termination of this Agreement, the provisions of this
Agreement shall remain in full force and effect insofar as may be necessary
to permit the obligations of the Chief Executive Officer hereunder which
are of continuing nature to be enforced against him accordingly.
(B) Notwithstanding that any provision of this Agreement may prove to be
illegal or unenforceable, the remaining provisions of this Agreement shall
remain in full force and effect.
(C) If the Chief Executive Officer wishes to obtain redress from any grievance
relating to his employment or is dissatisfied with any disciplinary step
taken by the Company he shall apply in writing setting out the nature and
details of any such grievance or dissatisfaction to the Board. The steps
consequent upon any such application are those normally taken upon
applications of a like nature from executives.
15. NOTICES
Any notice to be given hereunder shall be sufficiently served in the case
of the Chief Executive Officer by being delivered either personally to him
or sent by registered post addressed to him at his usual or last place of
abode or in the case of the Company by being delivered at or sent by
registered post addressed to its Registered Office and any such notice if
so posted shall be deemed served on the day following that on which it was
posted.
16. OTHER AGREEMENTS
The Chief Executive Officer acknowledges and warrants that save for a
shareholders' agreement ("the Shareholders Agreement") made between the
Management Shareholders (as defined in the Shareholders Agreement) the
investors (as defined in the Shareholders Agreement) and Stirling Xxxxx
Xxxxx Holdings Limited of the date hereof, there are no agreements or
arrangements whether written or oral or implied between the Company or any
Associated Company and the Chief Executive Officer relating to the
employment of the Chief Executive Officer other than those expressly set
out in this Agreement and that he is not entering into this Agreement in
reliance on any representation not expressly set out herein.
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17. GOVERNING LAW
This agreement shall be governed by an construed in accordance with Bermuda
Law. Each of the parties hereby irrevocably agrees for the mutual benefit
that the Courts of Bermuda are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement.
Signed /S/ Xxxxxxxx Xxxx Xxxxx Date 20th January 1996
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Witness /S/ Date 1/20/96
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REALM INVESTMENTS LIMITED
/S/ P.A. Xxxxx DIRECTOR
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SEAL
