EXHIBIT 10.12
THIS AGREEMENT is made the 30th day of April 0000
X X X X X X N :
(1) EUROPEAN MICRO PLC (registered number 2663964) having its registered office
at Market Court, 00-00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx XX00 0XX ("the
Company")
(2) XXXXXXXXXX XXXXXXXXX of 0 Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxx ("xxx
Executive")
IT IS AGREED as follows:
1. Definitions and interpretation
1.1 In this Agreement the following words and expressions shall have the
following meanings:
'the Board' means the board of directors of the Company and includes
any committee of the Board duly convened by it
'the Commencement means the Date'
'Shareholders means any company owned or controlled by Xxxxx Xxxxxxx
or Xxxx Xxxxxxxxx (who are by way of identification currently sitting
on the Board)
'EM Group Company' means any company which for the time being is a
subsidiary undertaking of the Company or which is partly owned by the
Company
'the Employment' means the employment established by this Agreement
'the Termination means the termination date of the Employment Date'
under this Agreement howsoever terminated.
'Intellectual means (i) every invention discovery design or Property'
improvement (ii) every work in which copyright may subsist, and (iii)
moral rights as defined by s 77 and s 80 of the Copyright Design and
Patents Xxx 0000.
1.2 The headings in this Agreement shall not affect its interpretation or
construction.
1.3 Any reference to this Agreement to any statutory provision includes
any statutory modification or re-enactment of it or the provision referred to
2. EMPLOYMENT
The Company shall employ the Executive and the Executive agrees to act as
Director of the Company on the terms set out in this Agreement.
3. FREEDOM TO TAKE UP THE APPOINTMENT
The Executive warrants that by virtue of entering into this Agreement she will
not be in breach of any express or implied terms of any contract or of any other
obligation binding upon her.
4. PERIOD
The Executive's Employment shall commence with effect from the Commencement Date
and shall (subject as hereinafter provided) be for an initial fixed term of one
year ending on 30th April 1997 and shall continue thereafter until terminated by
either party giving to the other not less than 6 months' written notice to
expire on or any time after the expiry date for the initial fixed term.
5. DUTIES OF THE APPOINTMENT
5.1 The Executive shall faithfully and diligently perform those duties of
her appointment and exercise such powers consistent with them which
are from time to time assigned to or vested in her and shall use her
best endeavours to promote the interests of the Company and any EM
Group Company for which she is required to perform duties.
5.2 The Executive shall (without further remuneration) if and for so long
as the Executive is so required by the Company:
(i) carry out the duties of her appointment on behalf of any EM
Group Company;
(ii) act as a director of any EM Group Company or hold any other
appointment or office as nominee or representative of the
Company or any EM Group Company;
(iii) carry out such duties and the duties attendant on any such
appointment as if they were duties to be performed by her on
behalf of the Company
6. OBEDIENCE AND REPORTING
The Executive shall obey all lawful and reasonable directions of the board and
at all times keep the Board promptly and fully informed (in writing if so
requested) of her conduct of the business or affairs of the Company and any EM
Group Company and provide such explanations as the Board may require.
7. DEVOTION TO DUTIES
7.1 The Executive shall during the term of this Employment devote the
whole of her time attention and abilities to the business and affairs
of the Company unless prevented by ill health from so doing and shall
not during the Employment either on her own account or as the
employer of others or otherwise be engaged or concerned in any
business other than that of the Company or any EM Group Company or
accept any other engagement or public office except with the prior
consent in writing of the Company but the Executive may nevertheless
be or become a minority holder of any securities which are quoted on
a recognized investment exchange
7.2 The Executive will be allowed to become a Shareholder in a company
which does not directly or indirectly compete with the Company or any
EM Group Company or any of the Shareholders Group provided that
consent is first obtained from the Company in writing such consent
not to be unreasonably withheld
8. COMPLIANCE/DEALINGS IN 'SECURITIES'
The Executive shall during her employment and for 12 months after the
termination of his employment comply with all applicable rules of law any
recognised investment exchange regulations [including the 'Model Code for
Securities Transactions by Directors of Listed Companies' issued by the
International Stock Exchange of the United Kingdom and the Republic of Ireland
Limited] and any Company policy issued in relation to dealings in shares
debentures or other securities of the Company and any EM Group Company or any
unpublished price sensitive information affecting the securities of any other
company.
9. PLACE OF WORK
9.1 The Executive shall initially work at the offices of the Company at
Market Court, 00-00 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx XX00 0XX but
the Executive shall if required to do so work in such place or places
within a 20 mile radius of Altrincham as the Board may reasonably
require for the proper performance of her duties hereunder
9.2 The Executive shall not be required (except for travel on the
business of the Company or any EM Group Company) to reside in other
parts of the world.
10 HOURS OF WORK
There are no normal fixed working hours for the Employment. The Executive is
expected to work at such times as the efficient and conscientious discharge of
her duties hereunder requires.
11 REMUNERATION
11.1 During the Employment the Executive shall receive as remuneration a
basic salary at the rate of (pound)30,000 per annum to be paid by
equal monthly instalments on the last day of each calendar month.
11.2 The remuneration shall unless otherwise agreed in writing by the
Company be inclusive of any fees or other remuneration which the
Executive would otherwise be entitled to receive from the Company in
connection with the performance of the duties delegated to her under
this Agreement
11.3 During the employment the Executive will also receive a bonus
calculated in accordance with Schedule 3 attached
12 EXPENSES
In addition to her basic salary hereunder the Executive shall be reimbursed the
amount of all reasonable travelling, hotel, entertainment and other expenses
properly and necessarily incurred and defrayed by her in the discharge of her
duties hereunder (including "professional fees"). The Executive shall produce to
the Company at its request all supporting vouchers and documents in respect of
such expenses. The Company will also pay any telephone expenses incurred by the
Executive in relation to this Contract of Employment upon production of
supporting bills in respect of such expenses.
13 PENSION AND OTHER BENEFITS
No pension contributions shall be paid by the Company on behalf of the Executive
14 COMPANY CAR
14.1 The Company shall make available to the Executive for use in the
performance of her duties a car in accordance with the Employer's car
policy
14.2 The Company will pay for all petrol used by the Executive only whilst
on the Company's business
14.3 The Executive may use the car for private purposes
14.4 The Company shall maintain service tax and comprehensively insure the
car as appropriate
15 HOLIDAYS
15.1 The Executive shall be entitled (in addition to normal bank and other
public holidays) to 20 days paid holiday in each calendar year at
such times as shall be
convenient to the Company and such additional holidays as the Board
shall approve
15.2 The Executive shall not be entitled to carry forward any unused
holiday entitlement from one holiday year to the next without the
written consent of the Company but the Executive shall be entitled to
be paid for days which are unused
16 SICKNESS OR INJURY
16.1 The Executive agrees that at any time during the course of the
Employment she shall at the request of the Company submit herself to
a medical examination by a registered medical practitioner nominated
by the Company. The purpose of such medical examination shall be to
determine whether there are any matters which might impair the
Executive's ability to perform her duties under this Agreement and
accordingly the Executive shall give such authority as is required
for the Company's nominated doctor to disclose to the Company the
findings. All expenses associated with obtaining the report will be
borne by the Company.
16.2 In the event that the Executive is unable to perform her duties under
this Agreement by reason of sickness or injury for a period of seven
days or more the Executive shall if required to do so by the Company
provide the Company with a medical certificate in respect of the
whole period of the absence. Immediately following her return from
any period of absence the Executive shall complete a
self-certification form detailing the reason for the absence
16.3 During the Executive's first ten weeks of absence she will receive
90% of her average weekly earnings calculated by taking the total of
her earnings over the previous twelve months and dividing the same by
fifty two. At the end of such ten week period no further payment will
be made to the Executive
16.4 The Company shall have the right to deduct from the remuneration paid
to the Executive any statutory sick pay or other social security
benefits which she is entitled to claim in consequence of sickness or
accident or payable to her under any scheme for the time being in
force of which by virtue of her employment by the Company she is a
non-contributory member.
16.5 In the event that the Executive is incapable of performing her duties
by reason of injury sustained wholly or partially as a result of
actionable negligence or breach of any statutory duty on the part of
any third party all payments made to the Executive by the Company by
way of remuneration shall to the extent that compensation is
recoverable from that third party constitute loans by the Company to
the Executive (notwithstanding that as an interim measure income tax
has been deducted from payments as if they were emoluments of
employment) and shall be repaid when and to the extent that the
Executive recovers compensation for loss of earnings from that third
party by action or otherwise.
17 CONFIDENTIALITY
The Executive shall not, either during the Employment, otherwise than in the
proper course of her duties, or thereafter, without the consent in writing of
the Company being first obtained, divulge to any person firm or company and
shall during the continuance of the Employment use her best endeavours to
prevent the publication or disclosure of any confidential information of the
Company and any EM Group Company or any of its or their secrets, dealings or
transactions whatsoever which may have come or may come to her knowledge during
her employment or otherwise and which include but are not limited to the
following matters:
(i)the working of any manufacturing process or invention or any other
methods formulae technical data and know how used by or which relate
to the business of the Company;
(ii)Lists of customers and potential customers of or suppliers and
potential suppliers to the Company and any EM Group Company and any
other information collected by the Company and any EM Group Company
in relation to those customers or suppliers;
(iii)the dealings or transactions or other business affairs of the Company
or any EM Group Company and its or their finances or management
accounts
The restriction shall cease to apply to information or knowledge which may
(otherwise than by reason of the default of the Executive) become available to
the public generally without requiring a significant expenditure of labour skill
or money
18 INTELLECTUAL PROPERTY
18.1 The Executive shall forthwith communicate to the Company in
confidence all Intellectual Property which the Executive may make or
originate either solely or jointly with another or others during the
Employment
18.2 In the case of such Intellectual Property as is made or originated
hereunder wholly or substantially in the course of her normal duties
or in the course of duties specifically assigned to her and which
relate to the affairs of the Company or any EM Group Company the
following subclauses of this clause shall apply
18.3 Such Intellectual Property (or in the case of Intellectual Property
made or originated by the Executive jointly with another or others to
the full extent of the Executive's interest therein so far as the law
allows) shall be and become the exclusive property of the Company and
shall not be disclosed to any other person, firm or company without
the consent of the Company being previously obtained which if given
may be subject to conditions. The provisions of this subclause shall
not entitle the Executive to any compensation beyond the salary
hereinafter
mentioned except that in the case of any invention on which a British
Patent has been granted or assigned to the Company and the Company
has derived outstanding benefit from such patent, the Executive may
be entitled by virtue of s 40 of the Patents Xxx 0000 to claim
additional compensation. The provisions of this clause shall not
restrict the Executive's rights under s 39 to s 43 of the Patents Xxx
0000.
18.4 The Executive shall if and when required by the Company and at the
expense of the Company do and/or combine with others in doing all
acts and sign and execute all applications and other documents
(including Powers of Attorney in favour of nominees of the Company)
necessary or incidental to obtaining maintaining or extending patent
or other forms of protection for such Intellectual Property in the UK
and in any other part of the world or for transferring to or vesting
in the Company or its nominees the Executive's entire right title and
interest to and in such Intellectual Property or to and in any
application, patent or other form of protection to copyright as the
case may be including the right to file applications in the name of
the Company or its nominees for patent or other forms of protection
or for registration of copyright in any country claiming priority
from the date of filing of any application or other date from which
priority may run in any other country.
18.5 The provisions of this clause shall remain in full force and effect
notwithstanding that after the Executive has made or originated any
such Intellectual Property the Employment may have ceased or been
determined for any reason whatsoever with the intention that the same
shall bind the heirs of an/or assigns of the Executive.
19 COPYRIGHT
The Executive shall promptly disclose to the Company all works in which
copyright or design rights may exist which the Executive may make or originate
either solely or jointly with others during the Employment. Any such copyright
works or designs created by her in the normal course of her employment or in the
course of carrying out duties specifically assigned to her which relate to the
affairs of the Company shall be the property of the Company whether or not the
work was made by direction of the Company or was intended for the Company and
the copyright in it and the rights in any design shall belong to the Company and
the copyright in it and the rights in any design shall belong to the Company and
to the extent that such copyright or design rights are not otherwise vested in
the Company the Executive hereby assigns the same to the Company.
20 POST-TERMINATION OBLIGATIONS
20.1 The Executive shall not during the period of 6 months after
termination of the Employment solicit or endeavour to entice away
from or discourage from being employed by the Company or any EM Group
Company any employee or Director employed by the Company or any EM
Group Company and who to her
knowledge was an employee thereof at the date of such termination or
whom to her knowledge has at that date agreed to be engaged as an
employee of the Company or any EM Group Company and with whom the
Executive has dealt or had contact in the normal course of her duties
20.2 The Executive shall not for a period of 6 months after the
termination of her employment (without the previous consent in
writing of the Company) and whether on her own account or for any
other person, firm or company directly in connection with any
business similar to or in competition with the business of the
Company solicit or endeavour to entice away from the Company any
person, firm or company (a) who or which in the 12 months prior to
the end of her employment shall have been a customer of or in the
habit of dealing with the Company - (b) with whom or which the
Executive had personal dealings in the course of her employment in
the 12 months prior to the end of her employment
20.3 The Executive shall not for a period of 6 months after the
termination of her employment (without the previous consent in
writing of the Company ) and whether on her own account or for any
other person, firm or company directly or indirectly in connection
with any business similar to or in competition with the business of
the Company do any business with, accept orders from, or have any
business dealings with any person, firm or company (a) who or which
in the 12 months prior to the end of her employment was a customer of
the Company and (b) with whom or which the Executive had personal
dealings in the course of her employment in the 12 months prior to
the end of her employment
20.4 The Executive shall not for a period of 6 months after the
termination of her employment and within the United Kingdom (without
the previous consent in writing of the Company) directly or
indirectly be engaged concerned or interested (whether as principal,
servant, agent, consultant or otherwise) in any trade or business
which is in competition with any trade or business being carried on
by the Company at the end of the Executive's employment or during a
period of 12 months prior to the end of her employment and with which
the Executive was concerned in the course of her employment
20.5 During the period of 6 months referred to in the preceding Clauses
20.1 to 20.4 the Company will pay the Executive her basic salary and
bonuses over the same 6 month period calculated by dividing the
previous 12 month bonus total by 2. This clause shall not apply where
this Contract has been terminated summarily in accordance with Clause
22.
20.6 The Executive shall not at any time after the Termination Date
represent herself as being employed by or connected with the Company
or any other EM Group Company
20.7 The Executive acknowledges:
(i) that each of the foregoing subclauses of this clause constitutes
an entirely separate and independent restriction on her; and
(ii) while at the date of this Agreement the duration, extent and
application of each of the restrictions are considered by the
parties no greater than is necessary for the protection of the
interests of the Company and any EM Group Company and reasonable
in all the circumstances it is acknowledged that restrictions of
such a nature may become invalid because of changing
circumstances and accordingly if any of the restrictions shall
be adjudged to be void or ineffective for whatever reason but
would be adjudged to be valid and effective if part of the
wording thereof were deleted or the periods thereof reduced or
the area thereof reduced in scope they shall apply with such
modifications as may be necessary to make them valid and
effective
21 DELIVERY OF DOCUMENTS AND PROPERTY
The Executive shall upon request at any time and in any event upon the
termination of the Executive's employment immediately deliver up to the Company
or its authorised representative all keys, security passes, credit cards, plans,
statistics, documents, records, papers, magnetic disks, tapes or other software
storage media and all property of whatsoever nature which may be in her
possession or control or relate in any way to the business affairs of the
Company and any EM Group Company and the Executive shall not, without the
written consent of the Company, retain any copies thereof.
22 SUMMARY TERMINATION
In any of the following cases the Company may terminate the Executive's
Employment by written notice taking effect on the date of its service in which
case the Executive shall not be entitled to any further payment from the Company
except such sums as shall then have accrued due;
(i) if the Executive shall be guilty of any gross misconduct or any
repeated breach of any of the terms of this Agreement;
(ii) if the Executive shall be convicted of a criminal offence
(except for a road traffic offence or an offence not involving a
custodial sentence);
(iii) if the Executive be adjudged bankrupt or makes any composition
or enters into any deed of arrangement with her creditors;
(iv) if the Executive is prohibited by law from being or acting as a
officer;
(v) if the Executive shall become of unsound mind or become a
patient under the Mental Health Xxx 0000;
(vi) if the Executive resigns as an Officer of the Company otherwise
than at the request of the Company
23 NO RIGHT TO WORK
23.1 The Company shall be under no obligation to provide any work for the
Executive during any period of notice either given by the Company or
the Executive to terminate the Executive's employment under this
Agreement. The Company may at any time during the said period suspend
the Executive from her employment or exclude her from any premises of
the Company. Provided that during such period the Executive shall
continue to receive salary and all other contractual benefits
including a monthly bonus figure (calculated by dividing the previous
total bonus payments over the preceding 12 month period by 12).
23.2 If the Contract is terminated by notice in accordance with Clause 4
then the period referred to in Clause 20.1 to 20.5 shall start to run
from the date of such notice. This proviso will not apply should the
Contract be terminated in accordance with Clause 22.
24 SHORT NOTICE
If the Executive shall at any time become or be unable properly to perform her
duties hereunder by reason of ill health accident or otherwise for a period or
periods aggregating at least 180 days in any period of 12 consecutive calendar
months the Company may by not less than three month's notice in writing
determine this Agreement.
25 RESIGNATION OF OFFICE
Upon the termination of the Employment howsoever arising the Executive shall at
any time or from time to time thereafter upon the request of the Company resign
without claim for compensation from all offices held by her in the Company and
any EM Group Company and should he fail to do so the Company is hereby
irrevocably authorised to appoint some person in her name and on her behalf to
sign and execute all documents or things necessary or requisite to give effect
thereto.
26 RETIREMENT
The Employment shall automatically terminate on the Executive reaching her 60th
birthday.
27 PRIOR RIGHTS
The termination of the Employment shall be without prejudice to any right that
the Company may have in respect of any breach by the Executive of any of the
provisions of this Agreement which may have occurred prior to such
determination.
28 NOTICES
Any notice given under this Agreement shall be deemed to have been duly given if
despatched by either party hereto by registered post addressed to the other
party in the case of the Company to is registered office for the time being and
in the case of the Executive to her last known address and such notice shall be
deemed to have been given on the day on which in the ordinary course of post it
would be delivered.
29 PRIOR AGREEMENTS
This Agreement is in substitution for all previous contracts of employment
express or implied between the Company or any EM Group Company and the Executive
which shall be deemed to have been terminated by mutual consent as from the
Commencement Date.
30 FIXED TERM
Pursuant to s 142 (1) and (2) of the Employment Protection (Consolidation) Xxx
0000 the Executive hereby agrees that no rights shall arise under ss 54 and 81
respectively of that Act in relation to this Agreement if the term of the
Executive's Employment under it expires without being renewed
31 DISCIPLINARY AND GRIEVANCE PROCEDURE
There are no fixed rules for the resolution of grievance or disciplinary
problems. In the event of the Executive being dissatisfied with any decision
taken against her, or have any grievance relating to the Employment, she should
apply in the first instance to the Managing Director who will either propose a
solution or refer the matter to the Board for a final decision.
32 THE COMPANY'S STAFF HANDBOOK
The terms of the Company's standard terms and conditions and employment policies
and procedures which are set out in the Company's staff handbook shall be terms
of the Executive's employment save to the extent that they are inconsistent with
this Agreement.
33 RECONSTRUCTION OR AMALGAMATION
If before the termination of this Agreement the Employment shall be determined
by reason of the liquidation of the Company for the purposes of reconstruction
or amalgamation and the Executive shall be offered employment with any concern
or undertaking resulting from such reconstruction or amalgamation on terms and
conditions no less favourable than the terms of this
Agreement then the Executive shall have no claim against the Company in respect
of the determination of the Employment.
34 EMPLOYMENT PROTECTION (CONSOLIDATION) XXX 0000
Schedule 2 to this Agreement sets out the particulars of employment not
contained in the Agreement that must be given to the Executive in accordance
with the terms of the Employment Protection (Consolidation) Xxx 0000
SCHEDULE 1
Table of salary increases
Current Increase Date of New salary Signed
salary commencement
of new salary
SCHEDULE 2
Section 1 Employment Protection (Consolidation) Xxx 0000
The following information is given to supplemental the information given in the
Agreement in order to comply with the requirements of section 1 of the
Employment Protection (Consolidation) Xxx 0000
1. The Executive's job title is Sales Director
2. The Executive's continuous period of employment with the Company commenced
on 1st December 1991 and is not continuous with any previous period of
employment with any other employer
3. There are no collective agreements in force which affect the terms and
conditions of the Executive's employment
SCHEDULE 3
Bonus Calculation
SALES CATEGORY PAYABLE ON GROSS PROFIT THRESHOLD (IF APPLICABLE)
-------------- ----------------------- -------------------------
B. Spofforth 10% None
Em plc sales (xxx.XX sales) 4.5% (pound)75,000
EM GmbH sales 2.5% (pound)20,000
EM BV sales 2.5% (pound)15,000
SALES CATEGORY is the gross profit area on which that percentage and threshold
applies.
GROSS PROFIT is the difference between purchase and selling price of goods sold,
after deduction of transport costs, duty, administration fees payable to US
companies and financing charges based on credit terms. All credit notes will be
deducted from the monthly gross profit.
THRESHOLD is the gross profit that must be made in each Sales Category BEFORE
the bonus is calculated. Each category will be treated individually for purposes
of the bonus calculation.
IN WITNESS whereof the parties hereto have executed this Agreement as a Deed the
day and year first before written
Signed by )
Director and by ) /s/ XXXXX X. XXXXXXX
Secretary ) ----------------
for and on behalf of the )
Company in the presence of: )
Signed by the Executive )
and delivered as a Deed ) /s/ XXXXXXXXXX XXXXXXXXX
in the presence of: ) --------------------
