Exhibit 10.3d
Dated 16 August 2000
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XXXXXXXXXXXX.XXX LIMITED
-and-
XXXXXXXX XXXXX
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SERVICE AGREEMENT
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AN AGREEMENT made the 16th day of August 2000
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BETWEEN
(1) XXXXXXXXXXXX.XXX LIMITED a company registered in England with
registered number 3835226 whose registered office is at 000 Xxxxxx,
Xxxxxx XX0X 0XX (hereinafter called "the Company"), and
(2) Xxxxxxxx Xxxxx, 00 Xxxxxxx Xxxxxxxx, Xxxxxxxx, X0 0XX, Xxxxxx
(hereinafter called "the Executive")
WHEREBY IT IS AGREED as follows:-
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1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement unless the context otherwise requires:
"Associated Company" shall mean any company which is for the time
being the Company's subsidiary (as defined
in Section 736 of the Companies Act 1985) or
holding company (as defined in Section 736
of the Companies Act 1985) or a subsidiary
(as defined in the said Section 736) of such
holding company other than the Company
itself
"the Board" shall mean the board of directors for the
time being of the Company
"the Group" shall mean the Company and its Associated
Companies for the time being
1.2 The masculine shall include the feminine and neuter and the singular
shall include the plural and vice versa.
1.3 The clause headings and numbering are for convenience only and shall
not affect the interpretation of this Agreement.
2. APPOINTMENT AND DURATION
The Company shall employ the Executive and the Executive shall serve
the Company on the following terms:
(i) The Executive shall serve an initial period of two months from
the 1st August 2000. During this period the Executive's
employment may be terminated by either party giving to the
other fourteen days written notice.
(ii) At the end of the probationary period referred to above, the
Executive's performance will be reviewed if satisfactory the
Executive's permanent employment will be confirmed, and he
will be invited to become a member of the Board. The Executive
will be employed for the term of one year from the
confirmation of such permanent appointment from 16th October
2000 and thereafter until this Agreement is terminated by
three months notice in writing by either party to the other,
such notice to expire on or after the period of one year
aforesaid.
3. DUTIES AND PLACE OF WORK
3.1 The Executive shall (unless prevented by ill health) devote the whole
of his time and attention during normal business hours (except during
holidays) entirely to the business of the Group subject to and in
accordance with any general or special directions which may from time
to time be given to him by the Board and will well and faithfully
perform the same and use his utmost endeavours to promote the interests
of the Group.
3.2 The Executive agrees that the limit on weekly working hours contained
in the Working Time Regulations 1998 shall not apply to this
employment.
3.3 The Executive shall act as an officer of the Company or any Associated
Company or hold any other appointment or office as nominee or
representative of the Company as the Board shall direct.
3.4 The Executive's place of work shall be at such place in the United
Kingdom as the Company shall from time to time determine and notify to
the Executive. The Executive may be required to carry out his duties
outside the United Kingdom and the conditions applicable to periods
outside the United Kingdom are attached as an Appendix to this
Agreement.
3.5 Once notice to terminate employment has been given by the Executive or
the Company, the Company:
3.5.1 shall be under no obligation to provide any work or work of
any particular kind for the Executive; and
3.5.2 may require the Executive not to attend work at any or all
premises of the Company
but his salary and any other contractual benefits shall not cease to be
payable or provided by reason only of the Company exercising its right
pursuant to this clause 3.5. This clause 3.5 shall not affect the
general right of the Company to suspend or dismiss the Executive for
good cause.
4. CONFIDENTIALITY
The Executive shall not at any time whether before or after the
termination of his employment with the Company disclose to any person
firm company or organisation whatsoever nor use print or publish any
secret or confidential information, matter or thing relating to any
company in the Group or the business thereof except in the proper
performance of his duties hereunder or with the prior written consent
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of the Company or as required by law. For the purposes of this clause
information shall be secret and/or confidential if it relates to or
consists of lists or details of customers or suppliers, information
relating to any process or invention used by any company in the Group,
product specifications, product lists, price lists, marketing plans,
staff and salary details sales forces and commission arrangements,
financial information, management and organisation of any company in
the Group and any other matter which is notified to the Executive
during the course of his employment as being secret or confidential.
5. INDUCEMENTS
The Executive shall not accept receive or obtain directly or indirectly
any benefit in respect of any sale or potential sale or purchase or
potential purchase of goods or services by or on behalf of any company
in the Group and shall not accept any gift or hospitality or other
benefit from any purchaser or supplier of goods or services to or from
any company in the Group without first having obtained the written
permission of the Company to his acceptance of the particular benefit
offered full details of which shall have been disclosed by the
Executive to the Company.
6. REMUNERATION AND EXPENSES
6.1 As remuneration for his services hereunder the Company shall pay to the
Executive a salary at the rate of (pound)75,000 per annum or such
higher salary as may from time to time be agreed between the Executive
and the Board payable by equal monthly instalments in arrears on the
last Thursday of each calendar month such salary to be inclusive of any
sums receivable as director's fees or other emoluments (if any) from
any company in the Group, except as specified below
6.1.1 The Executive will be entitled to receive a performance
related bonus of which will be determined by the Board.
Subject to satisfactory development of the company the bonus
in respect of the first 12 months of this contract will be not
less than (pound)12,000 paid in 4 instalments.
6.2 Except as otherwise provided herein or as otherwise agreed by the
Company the Executive shall not be entitled to any remuneration or
other payment from the Company in respect of any period of employment
during which the Executive is absent from work.
6.3 The Company shall subject to production of receipts, or other
reasonable evidence of expenditure, reimburse all travelling, hotel and
other out of pocket expenses reasonably and properly incurred by the
Executive in the performance of his duties hereunder. Payments in
respect of expenses shall be made monthly.
6.4 The Company shall be entitled to recover any debt owed to the Company
by the Executive or any other sums lawfully due to the Company from the
Executive by means of deductions from the Executive's remuneration
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including holiday pay and pay in lieu of notice or any other payment on
termination of the Executive's employment.
6.5 The Company shall provide a mobile phone and company credit card.
[7. CAR
7.1 The company shall not provide a vehicle for use by the Executive, but
will reimburse vehicle related business costs by use of the Inland
Revenue Fixed Profit car scheme mileage rates.
8. HOLIDAYS AND HOLIDAY PAY
8.1 In addition to bank and public holidays the Executive shall be entitled
to 28 working days' paid holiday in each calendar year at such time as
may be approved by the Board.
8.2 Upon the termination of this Agreement for whatever reason the
Executive shall be entitled to payment in lieu of any outstanding
holiday entitlement which may remain after deducting from accrued
holiday entitlement the amount of holiday already taken in the calendar
year in which the employment ceases.
8.3 The Executive shall refund to the Company any holiday pay received in
excess of the amount accrued due to the date of termination and the
Company may deduct any such sum from payments due to the Executive from
the Company on termination.
9. SICKNESS AND SICK PAY
9.1 If the Executive shall at any time be prevented by illness from
performing his duties hereunder he shall on demand furnish the Board
with evidence of such incapacity and the cause thereof and he shall
during such incapacity not exceeding a continuous period of six months
be entitled to receive his full remuneration less the amount of any
statutory sick pay or other benefit to which the Executive is entitled
under social security legislation for the time being in force.
9.2 If the incapacity referred to in clause 9.1 continues after a
continuous period of six months any payment to the Executive shall be
at the absolute discretion of the Board.
10. TERMINATION
10.1 The Company may by notice in writing to the Executive terminate
forthwith the employment of the Executive if the Executive:-
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10.1.1 in the reasonable opinion of the Board seriously neglects or
refuses to carry out the duties required of him hereunder or
is guilty of any other wilful breach or non-observance of any
of the terms and conditions of this Agreement;
10.1.2 becomes bankrupt or is the subject of a receiving order or
enters into any composition or deed of arrangement with
creditors;
10.1.3 becomes of unsound mind;
10.1.4 is unable to carry out his duties hereunder by reason of
mental or bodily incapacity, illness or accident for a
continuous period of 6 months or for an aggregate of 8 months
in any period of twelve months;
10.1.5 is convicted of any criminal offence other than an offence
which in the reasonable opinion of the Board adversely affects
neither the reputation of the Company or the Group nor the
Executive's ability to fulfil his duties adequately;
10.1.6 becomes disqualified from acting as a director by reason of
any provision of the Companies Xxx 0000, the Company Directors
Disqualification Act 1986 or any other statutory provision; or
10.1.7 is the subject of or causes the Company to be the subject of a
penalty or reprimand imposed by any regulatory authority by
which the Company is governed or to which its activities are
subject.
10.2 Upon the termination of this Agreement for whatever reason:-
10.2.1 the Executive shall if so requested by the Board resign
without claim for compensation from all or any offices he may
hold as a director of any company in the Group;
10.2.2 the Executive shall deliver up all documents and other
property of or relating to any company in the Group in his
possession or under his control and shall not make or retain
any copy or duplicate of any part thereof and shall not make
or retain any notes or extracts therefrom.
10.3 The Company may in its absolute discretion within 14 days of giving
notice to the Executive in accordance with clause 2.1 of this Agreement
terminate this Agreement with immediate effect by paying to the
Executive a sum equivalent to his normal basic salary and the taxable
value of all other benefits due to the Executive under this Agreement
which shall cease to be provided with immediate effect in respect of a
period equal to the period of notice to which he would otherwise have
been entitled under Clause 2.1 of this Agreement. The Company shall
deduct from any sum paid under this clause income tax and national
insurance contributions and any sums owed to the Company by the
Executive. For the avoidance of doubt, following the expiry of a 14 day
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period from the giving of notice under clause 2.1 of this Agreement the
power of the Company under this clause shall cease to be exercisable.
11. RESTRICTIONS
11.1 The Executive covenants that he shall not at any time during the period
of three months from the date on which his employment with the Company
ceases (hereinafter referred to as "the Termination Date") without the
prior written consent of the Company either alone or jointly with or as
agent, director, manager, consultant, employee or partner of any other
person, firm, company or organisation directly or indirectly:
11.1.1 be engaged or concerned in any business or activity within the
United Kingdom which competes directly with any business
carried on by the Company at the Termination Date and with
which business the Executive had been concerned in the
performance of his duties under this Agreement during the 12
months immediately preceding the Termination Date; or
11.1.2 in relation to any business carried on by the Company and in
competition with the Company canvass, solicit or endeavour to
take away from the any company in the Group the business or
custom of any person, firm, company or organisation who or
which was at the Termination Date or at any time during the 12
months immediately preceding the Termination Date a customer
or client of any company in the Group and with whom or which
the Executive shall have come into contact in the performance
of his duties under this Agreement during the 12 months
immediately preceding the Termination Date; or
11.1.3 solicit or endeavour to entice away from the Company or any
company in the Group any person who was on the Termination
Date a director or a employee of the Company or of any company
in the Group.
11.2 The Executive acknowledges and agrees that the restrictions set out in
clause 11.1 are fair and reasonable in the circumstances and that if
any one or more or any part of such restrictions shall be rendered or
judged invalid or unenforceable such restriction or part shall be
deemed to be severed from this Agreement and such invalidity or
unenforceability shall not in any way affect the validity or
enforceability of the remaining restrictions.
11.3 Following termination of this Agreement the Executive shall not falsely
represent himself or permit himself to be represented as being in any
way connected with or interested in the business of the Company other
than as a shareholder.
11.4 The Executive hereby acknowledges that the restrictions contained in
this Clause 11 shall operate for the benefit of the business carried on
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by the Company and such restrictions shall be enforceable against the
Executive by the majority of the shareholders in agreement for the time
being of the business carried on by the Company as well as by the
Company.
12. INVENTIONS
12.1 For the purpose of this Clause 12:-
"Inventions" means any inventions, developments, secret formula,
process or improvement, trade xxxx or name,
copyright, design, plan, drawing, computer program,
compilation, reports, information, databases,
specification or device of whatever nature which
relates to the business and/or products of the
Company and is invented, developed, created, devised
or otherwise acquired by the Executive (whether alone
or jointly with any other person) during the course
of his employment under this Agreement on whatever
media PROVIDED THAT any invention to which Section
39, Patents Xxx 0000 applies shall only be an
invention within this definition if the same:
12.1.1 was made in the course of the normal duties of the Executive,
or in the course of duties falling outside his normal duties,
but specifically assigned to him by the Board, and in either
case it was reasonable to expect that the same might result
from the execution by the Executive of his duties to the
Company pursuant to this Agreement; or
12.1.2 was made in the course of the Executive's duties and at the
time of making the same, because of the nature of his duties
and the particular responsibilities arising from the nature of
his duties, he had a special obligation to further the
interests of the Company.
"Registrable Rights" means patents, service marks, registrable
designs, trade marks, utility models or
similar commercial monopoly rights created
by registration (whether in the United
Kingdom or elsewhere in the world).
12.2 During the continuance of this Agreement :-
12.2.1 the whole interest of the Executive in any Inventions shall
become the absolute beneficial property of the Company without
any payment to the Executive (except to the extent provided in
Section 40 of the Patents Act 1977) other than reimbursement
of out-of-pocket expenses and (except in so far as they are
deemed vested in the Company under the provisions of any
statute) the Executive hereby assigns by way of future
assignment to the Company the whole of his interest in any
Inventions and in any intellectual property rights (including
without limitation copyright, design right, trade and service
xxxx rights, database rights and semi conductor topography
rights) in any such Inventions throughout the world including
any extensions, renewals or revivals and the right to xxx for
damages;
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12.2.2 the Executive shall promptly communicate to the Company full
particulars of all Inventions and, if any of the Inventions is
capable of being protected by any Registrable Rights, the
Company shall decide whether and where applications shall be
made for such Registrable Rights in respect of the same and
the Executive shall until such rights shall be fully and
absolutely vested in the Company hold the Inventions in trust
for the Company;
12.2.3 all such Registrable Rights shall be applied for and taken out
at the Company's expense and in the name of the Company or if
the Company shall require in the joint names of the Executive
and the Company and the Executive shall concur in applying for
the same and shall at the Company's expense prepare all such
drawings and specifications models and designs as may be
necessary and give every assistance in his power to procure
the grant of such Registrable Rights to the Company;
12.2.4 the interest (if any) of the Executive in such Registrable
Rights shall be unconditionally assigned by him to the Company
or as the Company may direct and any renewal fees payable in
respect thereof shall be paid by the Company;
12.2.5 the Executive will, at the request and expense of the Company,
do all acts and execute all documents which may be necessary
to give effect to this Clause 12 including, without
limitation, entering into any action, claim or proceeding; and
12.2.6 the Executive waives all moral rights arising from any
Inventions, so far as the Executive may lawfully do so, in
favour of the Company.
13. NOTICES
Notices may be given by either party to the other by personal service
or by letter sent by recorded delivery post addressed (in the case of
the Company) to its registered office for the time being or (in the
case of the Executive) to his last known home address and any notice
given by post shall be deemed to have been delivered 48 hours after
posting.
14. GENERAL
14.1 If the employment of the Executive hereunder shall be terminated by
reason of the liquidation of the Company for the purpose of
reconstruction or amalgamation and he shall be offered employment with
any concern or undertaking resulting from such reconstruction or
amalgamation on terms and conditions not less favourable than the terms
of this Agreement or if his employment hereunder shall be terminated by
the Company for any other reason and he shall be offered employment
with any Associated Company on terms and conditions not less favourable
than the terms of this Agreement then the Executive shall have no claim
against the Company in respect of the termination of his employment
hereunder.
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14.2 This Agreement contains the terms and conditions of the employment as
at the date hereof.
14.3 This Agreement supersedes any former or subsisting contract of
employment between the Company and the Executive which shall cease to
have effect on and from the date of this Agreement and sets out the
entire agreement between the parties at the date hereof in relation to
the employment of the Executive by the Company.
14.4 The Executive acknowledges and agrees that information relating to him
which is governed by the Data Protection Xxx 0000 and/or the Data
Protection Act 1999 may be held and process by the Company for all
matters and purposes in connection with the Executive's employment and
the business of the Company any may be transferred to other group
companies/third parties/and to countries outside the European Economic
Area for such purposes.
15. GRIEVANCE AND DISCIPLINARY PROCEDURES
15.1 If the Executive has any grievance relating to his employment or to any
disciplinary decision he should raise it with the Board for discussion
at a Board Meeting.
15.2 The Company has no formal disciplinary procedure applicable to the
Executive.
16. COLLECTIVE AGREEMENTS
There are no collective agreements in force affecting the Executive's
terms and conditions of employment.
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IN WITNESS whereof these presents have been entered into as a deed the day and
year first above written.
SIGNED by )
)
for and on behalf of )
XXXXXXXXXXXX.XXX LIMITED )
in the presence of:- )
Director
SIGNED by )
in the presence of:- )
APPENDIX
Periods of service outside the United Kingdom
If at any time the Executive is required to work outside the United Kingdom for
a period in excess of one month, the following terms and conditions will apply:
i) The Executive will be notified in advance of the commencement of the
period of service outside the United Kingdom and of its likely
duration.
ii) During any such period the Executive's salary will be paid in sterling
in the United Kingdom unless other arrangements are agreed.
iii) If the period of work outside the United Kingdom is not to exceed 2
months hotel expenses will be paid by the Company upon production by
the Executive of appropriate invoices on a weekly basis.
If the period of work outside the United Kingdom is expected to exceed
2 months, the Company will pay to the Executive a reasonable
accommodation allowance plus a subsistence allowance to be agreed by
the Board. Payment of these sums will be made each month by the same
method as payment of salary.
iv) Travelling expenses to and from the United Kingdom at the beginning and
end of your period of service abroad will be paid by the Company. If
the period of service outside the United Kingdom is expected to exceed
one month the Company will reimburse the Executive in respect of the
cost of return travel to the United Kingdom for one visit and
thereafter for one return trip to the United Kingdom in every one month
period.
v) The Executive will be notified of his place of work in the United
Kingdom and his duties upon his return at the end of his period of
service outside the United Kingdom.
iv) Any period of service outside the United Kingdom will form part of the
Executive's period of continuous service with the Company.
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