[GRAPHIC OMITTED] XXXXXXXX XXXX
DATED 15 February, 2001
(1) LITECH LIMITED
and
(2) XXXXXX XXXXXX
______________________________________________
SERVICE AGREEMENT
______________________________________________
00 Xxxxxxx Xxxxxx
Xxxxxx X0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
This Agreement is made on the day of 2001
BETWEEN:
1. LITECH LIMITED whose registered office is at 00 Xxxxxxx Xxxx, Xxxxxx XX0
("the Company")
and
2. XXXXXX XXXXXX of 0 Xxxxxxxxxxx Xxxxx, Xxxxxxxxxxx Xxxx,
Xxxxxxxx-xxxx-Xxxxxx, Xxxxxx, XX0 0XX ("the Executive")
IT IS XXXXXX AGREED AS FOLLOWS:
1 Interpretation
1.1 In this Agreement the following words and expressions shall have the
following meanings:
1.1.1 "Group Company" - a company which is from time to time a
Subsidiary or a Holding Company of the Company or a Subsidiary
(other than the Company) of a Holding Company of the Company;
1.1.2 "Group" the Company and any Group Companies from time to time;
1.1.3 "the Board" - the board of directors from time to time of the
Company including any committee of the board duly appointed by
it;
1.1.4 "Subsidiary" and "Holding Company" - the meanings respectively
ascribed thereto by s. 736 of the Companies Act 1985 as
originally enacted;
1.1.5 "the ERA"- the Employment Rights Act 1996; and
1.1.6 "Termination Date" means the date of termination of the
Executive's employment.
1.2 References in this Agreement to statutes shall include any statute
modifying, re-enacting, extending or made pursuant to the same or which
is modified, re-enacted, or extended by the same.
1.3 Headings are for ease of reference only and shall not be taken into
account in the construction of this Agreement.
2 Appointment
2.1 The Company hereby appoints the Executive and the Executive agrees to
serve the Company as Managing Director or in such position as may from
time to time be reasonably specified by the Board and which is reasonably
within his skill and competence on terms no less favourable than those
set out in this document.
2.2 The Executive warrants that entering into this Agreement and performing
his obligations under it he will not be in breach of any terms or
obligations under any further or other employment appointment or any
other Agreement whatsoever.
2.3 If the Executive is unable to fully carry out his duties for whatever
reason the Company may, at its absolute discretion, engage or employ any
other person or persons to perform some or all of the Executive's duties
Page 1
on a temporary basis until the Executive is able fully to resume the
proper performance of his duties hereunder.
3 Term
3.1 Subject to clause 18 hereof, the Executive's employment shall continue
for a period of two years although it may be terminated by either party
giving to the other not less than three months' written notice at any
time. The Executive's employment will terminate automatically on the
second anniversary of this Agreement, subject to agreement in writing by
the parties to vary its term.
3.2 Once notice to terminate has been given by either party in accordance
with clause 3.1 hereof, or in the case of the Executive, notice of a
shorter period than that required by clause 3.1 hereof has been given,
the Company reserves the right, exercisable in its absolute discretion,
to terminate the Executive's employment by making a payment in lieu of
the notice required by clause 3.1 or any unexpired part of such notice.
Any payment in lieu of notice shall consist of a sum equivalent to the
Executive's basic salary (at the rate applicable at the date notice is
given) and benefits specified in this Agreement, or a payment in lieu
thereof, for the notice period required by clause 3.1 or any unexpired
period thereof and shall be subject to such deductions as the Company is
required to make.
3.3 The Executive's continuous employment with the Company commenced on 1
April 1998.
4 Garden Leave provision
4.1 The Company reserves the right where either party to this Agreement gives
notice to terminate this Agreement or otherwise purports to terminate the
Executive's employment, to exclude the Executive from all or any of the
Company's places of business and to require him either to remain at home
or to attend one of the Group Company's offices to carry out special
projects which are reasonably commensurate with his position and within
his skill and competence as directed by the Board during all or any
part(s) of the Executive's contractual notice period.
4.2 Where the Company requires the Executive to stay at home under this
clause 4, it is relieved from any obligation whatsoever to provide the
Executive with work to do, or to allow the Executive access to any
premises of the Company or any Group Company, or to have contact with or
dealings with clients or suppliers of the Company or any Group Company,
or to allow the Executive to carry out his normal duties and the
Executive's normal duties under this Agreement will be suspended during
such period although the Company may require the Executive to undertake
other duties commensurate with his position as directed by the Board
provided always that salary and all other contractual benefits shall not
cease to be payable or provided by reason only of the Company exercising
it's rights pursuant to sub clauses 4.1 and 4.2 of this Clause 4. This
Clause shall not affect the general right of the Company to suspend in
accordance with Clause 20.2 nor affect the rights and obligations of the
parties prior to the service of such a notice.
4.3 There shall be no obligation on the Company to provide work for the
Executive or to allow him access to any premises of the Company or any
Group Company during any period in which the Company is carrying out a
bona fide investigation regarding any acts or defaults of the Executive.
The Executive shall continue to receive his full remuneration and other
benefits hereunder during any such period of suspension.
5 Powers, duties, workplace and working hours
5.1 During the continuance of his employment hereunder the Executive shall:
Page 2
5.1.1 unless prevented by ill health or other unavoidable cause devote the
whole of his working hours and of his attention and abilities to carrying
out his duties hereunder and to the business of the Company and any Group
Company, and use his reasonable endeavours to develop the business and
interests of the Group and will not extend, develop or evolve the
business of the Group other than through the Group;
5.1.2 will diligently and faithfully serve the Company and its Group Companies
to the best of his ability and carry out his duties in a proper and
efficient manner and use his reasonable endeavours to promote and
maintain the interests and reputation of the Company and of its Group
Companies;
5.1.3 exercise such powers and perform such duties in relation to the business
of the Company and/or of its Group Companies as may from time to time be
reasonably vested in or assigned to him by the Board;
5.1.4 comply with all reasonable requests and directions from time to time
given to him by the Board and with all rules and regulations from time to
time laid down by the Company concerning its employees which are
consistent with this Agreement;
5.1.5 keep the Board promptly and fully informed (in writing if so requested)
of his conduct of the business or affairs of the Company and/or its Group
Companies and provide such explanations as the Board may reasonably
require;
5.1.6 promptly disclose to the Company any of the following information which
comes into his possession either during or at any time after termination
of his employment:
5.1.6.1 the plans of any employees to leave the Company (whether alone
or in concert with other employees);
5.1.6.2 the plans of any employee (whether alone or in concert with
other employees) to join a competitor or to establish a business
in competition with the Company or any Group Company;
5.1.6.3 any steps taken by any employee to implement either of such
plans, including but not limited to any attempts to approach or
solicit clients or customers of the Company or any Group
Company;
5.1.6.4 the misuse by any employee or any third party of any
confidential information belonging to the Company or any Group
Company
5.1.6.5 the misconduct of any employee or consultant or agent of the
Company.
The Executive shall be obliged to make disclosure under this clause 5.1.6
notwithstanding that to do so would involve disclosure of information
pertaining to the Executive's own activities, including breaches by him
of his contract of employment;
5.1.7 not at any time to knowingly make any untrue or misleading statements
relating to the Company or any Group Companies or do anything that is
harmful to the Company or any Group Company;
5.1.8 travel to such places (whether within or outside the UK) in such manner
and on such occasions as the Company may from time to time reasonably
require.
Page 3
5.2 The Executive's normal place of work shall be the Company's premises at
00 Xxxx Xxxxxx, Xxxxxxxx-xxxx-Xxxxxx, Xxxxxx but the Company reserves the
right to require the Executive to change his normal place of work to such
other premises of the Company or Group Company within as the Company may
from time to time reasonably require.
5.3 The Executive's normal working hours shall be five days each week from 9
am to 5.30 pm with a one-hour break for lunch together with such
additional hours outside these hours as may be occasionally necessary for
the proper and efficient performance of the Executive's duties. No
payment will be made for any additional hours worked by the Executive,
nor will time off in lieu be permitted except with the agreement of the
Board.
5.4 The Executive hereby agrees that for the purposes of the Working Time
Regulations 1998 ("WTR") he is a self managing executive in accordance
with regulation 20 of WTR. The Executive agrees that he will comply with
any and all of the Company's policies from time to time in force relating
to its maintenance of records of his hours of work.
6 Secondment
The Company shall be entitled to second the Executive's services on a
full or part time basis to any Group Company and the Executive shall hold
such offices of the Company and of any Group Company and perform such
duties and fulfil such obligations for a Group Company for such periods
as the Company may require but such secondments shall not release the
Executive or the Company from their respective obligations under this
Agreement.
7 Remuneration
7.1 During his appointment the Company shall pay the Executive a basic salary
at the rate of (pound)40,000 per annum which shall accrue from day to day
and be payable in equal monthly instalments in respect of the current
month, on or before the last day of each month or the nearest working day
thereto. The salary shall be deemed to include any fees receivable by the
Executive as a Director of the Company or any Group Companies.
7.2 For the purposes of the ERA the Executive authorises the Company at any
time during his employment, and in any event upon termination howsoever
arising, to deduct from the Executive's remuneration under this Agreement
any sums from time to time owed by him to the Company or any Group
Company, including but not limited to any outstanding loans, advances,
excess holiday, the cost of repairing any damage or loss of the Company's
property caused by the Executive (and of recovering it) and any other
monies owed by the Executive to the Company.
7.3 Any benefits provided by the Company or any Group Company to the
Executive which are not expressly referred to in this Agreement shall be
regarded as ex gratia and made at the absolute discretion of the Company
and shall not confer any contractual entitlement upon the Executive.
8 Expenses
The Company shall reimburse to the Executive all travelling, hotel,
entertainment and other out-of-pocket expenses reasonably incurred by him
in the proper performance of his duties hereunder subject to his
compliance with the Company's guidelines as amended from time to time
relating to expenses and to production (if required) of receipts,
vouchers or other evidence of actual payment of the expenses.
Page 4
9 Private Medical Expenses Insurance
Subject to the health of the Executive or his family not being such as to
prevent the Company from obtaining cover on reasonable terms the Company
will arrange and pay for the Executive and his spouse and dependent
children up to the age of 18 to be entitled to membership of the
Company's private medical insurance scheme for the time being in force.
Membership of the scheme is subject to the rules for the time being in
force of the scheme and of any related insurance policy. The Company
reserves the right to change the provider with which its scheme is
maintained and to change the rules of the scheme for the time being
(including the basis of cover and the scale or level of benefit).
10 Car Allowance
The Executive will receive a car allowance to cover full tax, insurance
and all reasonable petrol expenses. The amount will be reviewed and may
be adjusted annually. The Executive will be notified of any change in
amount. This will be paid net of tax and National Insurance contributions
with the Executive's salary on the last day of each month, or the nearest
working day thereto.
11 Pension
The Executive is not entitled to participate in a pension scheme or to
receive pension contributions. There is no contracting-out certificate in
force in respect of the Executive's employment.
12 Holidays
12.1 The Company's holiday year runs from 1 January to 31 December ("Holiday
Year").
12.2 In addition to normal bank and other public holidays in England, the
Executive shall be entitled in every Holiday Year to 20 working days paid
holiday to be taken at such time or times as may be approved by the
Board. For the purposes of the Working Time Regulations, the Executive is
required to take a minimum of 20 days holiday including normal bank and
public holidays in England in each Holiday Year.
12.3 Holiday dates must be agreed with the Board in advance of booking. As
much notice as possible should be given and no firm arrangements made
until the Board's agreement has been given. The Executive may not carry
forward holiday entitlement to the next Holiday Year, and no payment in
lieu of untaken holiday entitlement will be made except in accordance
with clause 12.4.
12.4 Paid holiday entitlement shall accrue at the rate of 1.6 working days per
month of completed service in each calendar year and on the determination
of his employment hereunder the Executive shall be entitled to pay in
lieu of outstanding holiday entitlement in respect of that calendar year
or shall be required to repay to the Company for holiday taken in excess
of his actual entitlement and for the purposes of this clause the basis
of calculation shall be 1/260 annual salary for each day's holiday
entitlement. The Company reserves the right to require the Executive to
take any accrued unused holiday entitlement during his period of notice.
12.5 If the Executive is dismissed and the principal reason for his dismissal
is misconduct or if the Executive fails to give sufficient notice to
terminate his employment, the Executive will not be entitled to any
payment in lieu of any accrued holiday entitlement.
Page 5
13 Incapacity
13.1 If the Executive is absent from work due to illness or accident he shall
notify a member of the Board as soon as possible and if this incapacity
continues for seven or more consecutive days he shall on the seventh day
of such absence and on each succeeding seventh day submit a doctor's
certificate to the Company. If the Executive is absent from work for less
than seven days, the Company will require the Executive to provide a
sickness report form as evidence of his illness or incapacity.
13.2 Without prejudice to the Company's right to terminate this Agreement
pursuant to clause 18.2, if the Executive is absent from work due to
Incapacity duly notified and certified in accordance with clause 13.1 the
Company will normally pay the Executive his full remuneration for up to
an aggregate of 13 weeks and thereafter such remuneration as the Board
shall in its absolute discretion determine until he has resumed his
duties.
13.3 The remuneration paid under clause 13.2 for absence due to Incapacity
shall include any statutory sick pay (SSP) payable and when this is
exhausted shall be reduced by the amount of social security sickness
benefit or other benefits recoverable by the Executive (whether or not
recovered). For SSP purposes the Executive's qualifying days are Monday
to Friday.
13.4 For the purposes of clauses 13.2 and 13.3 above, "Incapacity" shall mean
any illness, accident or other likely cause but excluding any illness or
accident caused by the Executive's own negligence or self infliction such
as alcoholism and/or drug abuse which prevents the Executive from
performing his duties hereunder.
13.5 The Company reserves the right to require the Executive at any time to
submit himself for examination by a doctor appointed by the Company at
the Company's expense.
13.6 If the Executive's absence shall be occasioned by the actionable
negligence of a third party in respect of which damages are recoverable,
the Executive shall:
13.6.1 notify the Company as soon as it is reasonably practicable of
all the relevant circumstances and of any claim, compromise,
settlement or judgment made or awarded;
13.6.2 give to the Company at its expense such information concerning
the above matters as the Company may reasonable require, and
13.6.3 if the Company so requires, refund to the Company such sum, not
exceeding the lesser of:
13.6.3.1 the amount of damages actually received by him under
such claim, compromise, settlement or judgment; and
13.6.3.2 the sums advanced to him by way of sick pay in respect
of the period of incapacity.
14 Inventions and improvements
14.1 If the Executive creates or discovers or participates in the creation or
discovery of any inventions or Intellectual Property during the course of
his employment with the Company, the Executive shall promptly give to the
Company full details of such inventions or Intellectual Property and if
such inventions or Intellectual Property in the opinion of the Company
relate to or are capable of being used in the business for the time being
carried on by the Company or any Group Company or if such inventions or
Page 6
Intellectual Property shall be an invention belonging to the employer as
defined in Section 39 (1) of the Patents Act 1977, then without prejudice
to any other right of the Company or any Group Company any such
inventions or Intellectual Property shall be the absolute property of the
Company and the Executive shall forthwith and from time to time both
during his employment and thereafter at the request and expense of the
Company:
14.1.1 give and supply all such information, data, drawings and
assistance as may be necessary to enable the Company to exploit
such inventions or Intellectual Property to the best advantage;
14.1.2 execute all documents and do all things which may be necessary
or desirable for obtaining patent or other protection for the
inventions or Intellectual Property in such parts of the world
as may be specified by the Company and for vesting the same in
the Company or as it may direct;
14.1.3 not do any act or fail to do any act which might invalidate or
adversely affect any inventions or Intellectual Property.
14.2 The Executive irrevocably appoints the Company to be his attorney in his
name and on his behalf to sign execute or do any such instrument or thing
and generally to use his name for the purpose of giving to the Company
(or its nominee) the full benefit of the provisions of this clause 14 and
in favour of any third party a certificate in writing signed by any
director or the Secretary of the Company that any instrument or act falls
within the authority conferred by this clause shall be conclusive
evidence that such is the case.
14.3 The Executive waives all of his moral rights as defined in the Copyright
Designs and Patents Act 1988 in respect of any acts of the Company or any
acts of third parties done with the Company's authority in relation to
the inventions and Intellectual Property which are the property of the
Company (or are the property of the Company by virtue of clause 14.2
hereof).
14.4 Rights and obligations under this clause shall continue in force after
termination of this Agreement in respect of inventions or Intellectual
Property made or discovered during the Executive's employment under this
Agreement and shall be binding upon his representatives.
14.5 In this clause 14, "Intellectual Property" includes letters patent, trade
marks, service marks, trade names, designs, utility models, copyrights
(existing and future), design rights, applications for registration of
any of the foregoing and the right to apply for them in any part of the
world, moral rights, inventions, improvements to procedures, confidential
information, know-how, and rights of like nature arising or subsisting
anywhere in the world, in relation to all of the foregoing, whether
registered or unregistered.
15 Restrictions during employment
The Executive shall not during the continuance of his employment
hereunder (whether during or outside of his employment or his working
hours) without the prior consent in writing of the Board such consent not
to be unreasonably withheld either alone or jointly with or on behalf of
others and whether directly or indirectly and whether as principal,
partner, agent, shareholder, director, employee, consultant or otherwise
howsoever shall not engage in, carry on or be interested or concerned in
any other business, trade, profession, occupation or fee-earning activity
which is similar to or competes with or may compete with the business of
the Company or which may, in the opinion of the Board, cause conflicts of
interest in connection with the Executive's duties to the Company or any
Group Company. This shall not preclude him from holding not more than
three per cent of any class of issued shares or other securities which
are listed or dealt in on any recognised stock exchange by way of bona
fide investment only.
Page 7
16 Restrictions after Employment
16.1 For the purposes of this clause the following definitions shall apply:
"Client" shall mean any client of the Company or any Group Company within
a period of 12 months before the Termination Date with whom or which,
during such period:
16.1.1 the Executive had personal dealings in the course of his
employment by the Company or any Group Company; or
16.1.2 any employee who was under the direct or indirect supervision of
the Executive and to his knowledge had personal dealings in the
course of his employment
at any time within a period of 12 months before the Termination Date.
"Prospective Client" means any potential client with whom, to the
knowledge of the Executive the Company or any Group Company has been in
active negotiation or has submitted tenders at any time within a period
of 6 months before the Termination Date;
"Services" means the services of the supply of fibre optic lighting
systems provided by the Company or any Group Company with which the
Executive's duties were concerned and for which he was responsible or
which were provided to the knowledge of the Executive during the 12
months immediately preceding the Termination Date;
"Supplier" shall mean any of the Company or any Group Company with whom
the Executive has had significant dealings, in the course of his
employment within a period of 12 months before the Termination Date
together with any other company providing fibre optic lighting services
to the Company or any Group Company;
"Termination Date" shall mean the date of termination of the Executive's
employment.
16.2 In order to protect the legitimate business of the Company and the Group
Company, the Executive hereby undertakes that (without the prior written
consent of the Board) he shall:
16.2.1 not for a period of 9 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (on his own
behalf or on behalf of any other person, firm or company)
solicit or entice away or seek to solicit or entice away from
the Company or any Group Company any person who at the
Termination Date was employed by the Company or any Group
Company as an employee and with whom the Executive had dealings,
in the course of his employment, within a period of 6 months
before the Termination Date.
16.2.2 not for a period of 12 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on
his own behalf or on behalf of any other person, firm or
company) solicit or seek in any capacity whatsoever any
business, order or custom for any services which are competitive
with the Services from any Client or otherwise interfere with
the relationship between the Company or any Group Company and
any Client.
16.2.3 not for a period of 12 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on
his own behalf or on behalf of any other person, firm or
company) solicit or seek in any capacity whatsoever any
business, order or custom for any services which are competitive
with the Services from any Prospective Client or otherwise
Page 8
interfere with the relationship between the Company or any Group
Company and any Prospective Client.
16.2.4 not for a period of 6 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on
his own behalf or on behalf of any other person, firm or
company) accept or deal with any business, orders or custom for
any services which are competitive with the Services from any
Client or otherwise interfere with the relationship between the
Company or any Group Company and any Client.
16.2.5 not for a period of 6 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on
his own behalf or on behalf of any other person, firm or
company) accept or deal with any business, orders or custom for
any services which are competitive with the Services from any
Prospective Client or otherwise interfere with the relationship
between the Company or any Group Company and any Prospective
Client.
16.2.6 not for a period of 12 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on
his own behalf or on behalf of any other person, firm or
company) seek to entice away from the Company or otherwise
interfere with the terms of dealing or the relationship between
the Company and any Group Company and any Supplier.
16.2.7 not for a period of 3 months after the Termination Date whether
directly or indirectly in any capacity whatsoever (whether on
his own behalf or on behalf of any other person, firm or
company) carry on or be directly or indirectly engaged or
concerned or interested whether as principal agent, shareholder,
employee, consultant or otherwise in any business or concern
which provides fibre optic lighting services competitive with
the Services and which competes with (or which is intended once
operational to compete with) the business of the Company or any
Group Company with which the Executive was concerned in the
course of his employment, within a period of 6 months before the
Termination Date.
16.2.8 After the termination of his employment, for any reason
whatsoever, the Executive shall not for any reason represent
himself as still connected with the Company or any Group Company
or as still authorised to conduct business on behalf of the
Company or any Group Company.
16.3 The periods of twelve (12) months referred to in Clauses 16.2.2, 16.2.3,
and 16.2.6 and the periods of six (6) months referred to in Clauses
16.2.4 and 16.2.5 and the period of three (3) months referred to in
Clause 16.2.7 shall in each case be reduced by the period during which
the Company exercises its right to place the Executive on garden leave
pursuant to Clause 4 hereof.
16.4 The Executive agrees and undertakes that in the event of receiving an
offer of employment or engagement during the continuance of this
Agreement or during the continuance in force of any of the restrictions
set out in the clause 16, the Executive will forthwith provide to the
offeror a complete copy of this Agreement and will confirm in writing to
the Board that he has done so.
16.5 Each of the restrictions in the sub-clauses of this clause shall be
construed as separate and individual restrictions and shall each be
capable of being severed without prejudice to the other restrictions or
the remaining provisions of this Agreement.
Page 9
17 Confidential Information
17.1 In addition and without prejudice to the Executive's common law
obligations to keep information secret the Executive shall not (except
for the purpose of properly performing his duties hereunder or with the
prior express written consent of the Company or unless ordered to do so
by a Court) during his employment or after its termination use, disclose
or communicate and shall use all reasonable endeavours to prevent the
improper use, disclosure or communication of:
17.1.1 any information of a confidential nature (including but not
limited to information regarding the business, accounts,
finances, trading, client lists, client details and information,
fee rates, ways of calculating fee rates, quotations and
tenders, contractual arrangements, contract details, details of
suppliers and contractual arrangements with them, software,
intellectual property rights, designs, business plans, results
of developments, marketing strategies, ideas and future plans
for the business, or otherwise howsoever) of the Company or any
Group Company;
17.1.2 any confidential report or research undertaken by or for the
Company or any Group Company during the course of his
employment;
17.1.3 any information designated as confidential by the Company or any
Group Company or which to his knowledge has been supplied to the
Company or any Group Company subject to an obligation of
confidentiality.
17.2 The restrictions contained in this clause shall cease to apply with
respect to any information, confidential report or research which comes
into the public domain otherwise than through an unauthorised disclosure
by the Executive or a third party or to information which is required to
be disclosed by operation of law.
17.3 In this clause "information" and "confidential report or research" refer
to confidential information and confidential reports and research which
came to the knowledge of the Executive during the course of his
employment.
17.4 In order to protect the Company's confidential information, the Executive
agrees that he will not at any time make or arrange to have made any
copy, abstract, summary or precis of the whole or any part of any
document, computer programme or record belonging to the Company except
when required to do so for the purpose of properly performing his duties
hereunder, and the Executive acknowledges that any such copy, disk,
programme, abstract, summary or precis shall belong to the Company and
shall be delivered up to the Company on termination of his employment.
17.5 The Executive shall not without the prior written consent of the Board
either directly or indirectly publish any opinion, fact or material or
deliver any lecture or address or participate in the making of any film
radio broadcast or television transmission or communicate with any
representative of the media or any third party relating to the business
affairs of the Company or any Group Company or to any of its officers,
employees, clients, suppliers, agents or shareholders. For the purposes
of this clause "media" shall include television (terrestrial, satellite
and cable) radio, internet, newspapers and other journalistic
publications.
18 Termination
18.1 If:
Page 10
18.1.1 the Executive is adjudged bankrupt or enters into any
composition or arrangement with or for the benefit of his
creditors including a voluntary arrangement under the Insolvency
Act 1986;
18.1.2 the Executive shall commit any act of dishonesty whether
relating to the Company, any Group Company, an employee or
otherwise;
18.1.3 the Executive is guilty of any serious misconduct or commits any
serious or (having been given notice in writing) persistent
breach of any of his obligations to the Company or any Group
Company (whether under this Agreement or otherwise) or refuses
or neglects to comply with any reasonable and lawful orders or
directions given to him by the Board;
18.1.4 the Executive shall be convicted of any criminal offence (other
than an offence under the road traffic legislation in the United
Kingdom or elsewhere for which a penalty other than imprisonment
(either immediate or suspended) is imposed) or other than one
which in the opinion of the Board does not adversely affect his
position as a director;
18.1.5 the Executive is guilty of any serious mis-conduct tending in
the reasonable opinion of the Board to prejudicially affect the
interests or reputation of the Company or any Group Company;
18.1.6 the Executive shall fail, after due and proper warning, to
perform his duties competently;
18.1.7 the Executive shall be or become prohibited by law from being a
director;
18.1.8 the Executive shall resign as a director of the Company or any
Group Company without the consent of the Board;
then the Company shall be entitled by written notice to the Executive to
forthwith determine his employment under this Agreement. In the event of
termination pursuant to this sub-clause 18.1 the Executive shall have no
claim against the Company or any Group Company for pay in lieu of notice
or damages or otherwise by reason of such termination. The provisions of
this sub-clause 18.1 are without prejudice to any rights which the
Company may have at common law to terminate the employment of the
Executive summarily.
18.2 Notwithstanding Clause 3.1, the Company may terminate this Agreement by
notice not less than the statutory minimum notice given at any time
whilst the Executive is incapacitated by ill health or accident from
performing his duties under this Agreement and he has been so
incapacitated for any period of more than 6 months or for periods
aggregating 9 months in the preceding period of 24 months, provided that
the Company shall withdraw any such notice if during the currency of the
notice the Executive returns to full time duties and provides a medical
practitioner's certificate satisfactory to the Board to the effect that
he has fully recovered his health and no recurrence of his illness or
incapacity can reasonably be anticipated.
18.3 Upon whichever is the first to occur of (a) the Company exercising its
rights pursuant to Clause 4 and (b) termination howsoever arising of his
employment and/or this Agreement, the Executive shall immediately tender
his resignation from all offices he holds in the Company and in any Group
Company without prejudice to any other rights accruing to either party
hereto and without claim for compensation. In the event of the Executive
failing so to resign as required herein, the Company is hereby
irrevocably authorised to appoint some person in his name and on his
behalf to sign and deliver such resignations.
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18.4 The Executive's employment will terminate automatically without notice
being given on his 60th birthday.
18.5 After the termination of the Executive's employment hereunder he shall
not at any time thereafter represent himself as being in any way
connected with or interested in the business of or employed by the
Company or any Group Company other than as a shareholder; or use for
trade or other purposes the name of the Company or any Group Company or
any name capable of confusion therewith other than as a shareholder.
18.6 The Executive will both during and at any time after the termination of
his employment under this Agreement provide the Company or any Group
Company with such assistance as it may require in the conduct of such
proceedings in any Court, Tribunal or other body of competent
jurisdiction as may arise in respect of which the Company or any Group
Company or its or their legal advisers believe the Executive may be able
to provide assistance. The Company shall pay the Executive's reasonable
expenses necessarily incurred in providing such assistance.
18.7 The termination of the Executive's employment hereunder for whatever
reason shall not affect those terms of this Agreement which are expressed
to have effect thereafter and shall be without prejudice to any accrued
rights or remedies of the parties.
19 Return of Company property
19.1 Upon whichever is the first to occur of (a) the Company exercising its
rights pursuant to Clause 4 and (b) termination howsoever arising of his
employment and/or this Agreement, the Executive shall upon demand deliver
up to the Company Secretary all property in his possession or under his
control belonging to the Company or any Group Company including but nor
limited to all motor cars, credit cards, keys and passes, equipment,
details of client records, Company manuals, records made by the Executive
in the course of his employment, address lists, address books, diaries,
computer lists, disks, programmes and software, correspondence,
documents, books, papers, files, records, training records and reports
and other property or material belonging to or relating to the business
of the Company and any Group Company or their suppliers or clients which
may have come into his possession, custody or control in the course of or
in consequence of his employment (and whether or not belonging to the
Company or any Group Company) and the Executive shall not be entitled to
and shall not retain any copies thereof in whatever form.
19.2 The Executive will, on being requested to do so, send to the Company
addressed to the Board a signed statement confirming that he has complied
with the obligations in clause 19.1 above.
19.3 Where the Company exercises its rights pursuant to Clause 4 the Executive
shall not be obliged to return any property provided to him as a
contractual benefit. The Executive shall return such property forthwith
on the termination of this Agreement.
20 Grievance and disciplinary procedure
20.1 The Executive is subject to the Company's disciplinary rules and
disciplinary procedures in force from time to time.
20.2 The Company reserves the right to suspend the Executive for the purposes
of investigating any allegation of misconduct or breach of this
Agreement. The period of such suspension shall not normally exceed one
month and whilst suspended the Executive shall continue to be entitled to
his salary and all other contractual benefits. During any period of
suspension pursuant to this clause the Executive shall not, except with
the prior written consent of the Chairman of the Board attend any
premises of the Company or any Group Company, conduct any business on
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behalf of the Company or any Group Company or contact any employee or
customer of the Company or any Group Company.
20.3 If the Executive wishes to seek redress of any grievance relating to his
employment he should refer such grievance to the Board. Appeal against
warnings issued under the disciplinary or performance improvement
procedures should be notified to the Company Secretary, in writing,
within five working days of receipt of the warning setting out in full
the grounds of the Executive's appeal.
21 Data Protection
21.1 The Executive gives his consent to the Processing of his Personal Data by
the Company in the course of his employment, and in particular but
without limitation any Processing for the purposes of the Company's
administrative and management of its staff and its business, the
marketing of its business and its accounting procedures.
21.2 The Executive explicitly gives his consent to the Company for the
Processing of the Sensitive Personal Data of the Executive. Sensitive
Personal Data may include but shall not be limited to data concerning the
Executive's physical or mental health, attendance records, sickness
absence, disciplinary records, trade union membership and/or criminal
convictions. The Executive acknowledges that Processing may include
disclosure of the Executive's Sensitive Personal Data where it is
necessary or desirable to do so for the conduct, facilitation or
promotion of the Company's business and which may include disclosure in
the context of a transfer of the whole or any part of the Company's
undertaking, discussions with the Company's professional advisers, or
where it is required to make any such disclosure by law or any written
code of conduct, rule or procedure of the Company or any Group Company or
regulatory body.
21.3 "Processing", "Personal Data" and "Sensitive Personal Data" shall have
the meanings ascribed to them by Sections 1 and 2 of the Data Protection
Act 1998.
21.4 The Executive agrees to acquaint himself with and abide by the Company's
Data Protection Policy from time to time in force, breach of which will
be treated as a serious disciplinary matter which may result in his
dismissal.
22 Share dealings
22.1 The Executive shall comply, where relevant, with every rule of law, every
requirement of any recognised investment exchange within the meaning of
Section 207 Financial Services Act 1986 and every regulation of the
Company and any Holding Company from time to time in force in relation to
dealings in shares, debentures or other securities of the Company or any
Group Company and unpublished price sensitive information affecting the
shares, debentures or other securities of any other company and, in
relation to overseas dealings, the Executive shall also comply with all
laws of the state and all regulations of the stock exchange, market or
dealing system in which such dealings take place.
22.2 The Executive shall not (and shall procure so far as he is able that his
spouse and children shall not) deal or become or cease to be interested
(within the meaning of Part I of Schedule XIII to the Companies Act 1985)
in any securities of the Company except in accordance with any Company
rules or guidelines from time to time relating to securities transactions
by directors.
22.3 The Executive will comply with the xxxxxxx xxxxxxx and disclosure of
material non-public information policies from time to time in force of
VerticalBuyer Inc or any other Holding Company of the Company from time
to time.
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23 Reconstruction or amalgamation
If the employment of the Executive under this Agreement is terminated by
reason of the liquidation of the Company for the purpose of
reconstruction or amalgamation and the Executive is offered reasonable
alternative employment with any concern or undertaking resulting from the
reconstruction or amalgamation 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 under this Agreement.
24 General
24.1 No failure or delay by the Company in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof nor
shall any single or partial exercise by the Company of any right, power
or privilege preclude any further exercise thereof or the exercise of any
other right, power or privilege.
24.2 There are no collective agreements which directly affect the terms and
conditions of the Executive's employment.
25 Smoking
The Company operates a strict no smoking policy and smoking is therefore
not permitted on the Company's premises or immediately outside the
entrance foyers and reception.
26 Notices
26.1 Any notice or other communication given or made under this Agreement
shall be in writing and may be delivered to the relevant party or sent by
first class prepaid letter to the address of that party specified in this
Agreement or to that party's facsimile number thereat or at such other
address or facsimile number as may be notified by that party from time to
time for this purpose. Service at the last notified address or facsimile
number shall be effective for the purposes of this Agreement
notwithstanding the fact that either party may subsequently have changed
its address or facsimile number without having notified the other party
under the provisions of this clause.
26.2 Unless the contrary shall be proved each such notice or communication
shall be deemed to have been given or made and delivered, if by letter,
72 hours after posting and, if by delivery or facsimile, when
respectively delivered or transmitted.
27 Other agreements
This Agreement supersedes all other agreements other than those expressly
referred to in this Agreement whether written or oral between the Company
or any Group Company and the Executive relating to the employment of the
Executive and the Executive acknowledges and warrants to the Company that
he is not entering into this Agreement in reliance on any representation
not expressly set out herein.
28 Governing law
This Agreement shall be governed by and construed in all respects in
accordance with English law and the parties agree to submit to the
non-exclusive jurisdiction of the English courts as regards any claim or
matter arising in respect of this Agreement.
In witness whereof this Agreement has been duly executed by the parties as a
deed the day and year first above written.
Executed by as a deed by ) /s/ XXXXXXX XXXXX
LITECH LIMITED acting by: ) .................................
Director
/s/ XXXXXX XXXX
.................................
Director/Secretary
Signed and delivered as a deed )
by the said XXXXXX XXXXXX ) /s/ XXXXXX XXXXXX
in the presence of: )
Witness signature: /s/ XXXX XXXXXXX
Witness name: Xxxx Xxxxxxx
Witness address: 00 Xxxxxxx Xxxxxx, Xxxxxx
Witness occupation: Solicitor
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