Exhibit 10.11
DATED 28 JULY 1999
(1) PHASE FORWARD EUROPE LIMITED
- AND -
(2) XXXXXX XXXXX
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EXECUTIVE
SERVICE AGREEMENT
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GARRETTS
XXXXXX XXXXX
XXXXX XXXXXX
XXXXXXX
XXXXXXXXX
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TEL: 0000 000 0000
FAX: 0000 000 0000
REF: ALT
THIS SERVICE AGREEMENT dated 28 July 1999
BETWEEN:
(1) Phase Forward Europe Limited (registered no 3738680) whose registered
office is at Xxxxxx Xxxxx, Xxxxx Xxxxxx, Xxxxxxx XX0 0XX ("the Company");
and
(2) Xxxxxx Xxxxx of 00 Xxxxxxxx Xxxxxx, Xxxxxxx, Xxxx xx Xxx XX0 0XX ("the
Executive").
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
Except where the context otherwise requires, the following definitions are
used in this Agreement:
"ASSOCIATED COMPANY" means a company which is from time to time a
holding company or a subsidiary of the Company or
a subsidiary (other than the Company) of a holding
company of the Company. In this definition
"subsidiary" and "holding company" have the same
meanings as in Section 736 of the Companies Xxx
0000.
"THE BOARD" the Board of Directors of the Company for the time
being or such other person or persons as the Board
may nominate as the representative of the Board
for the purpose of this Agreement;
"COMMENCEMENT DATE" 1st August 1999;
"THE EMPLOYMENT" the employment of the Executive by the Company
established by this Agreement.
1.2 MODIFICATION OF ENACTMENTS
Any reference to an enactment (or subordinate legislation or any rule made
by any authority and having the effect of law) is a reference to it as
amended from time to time and includes a reference to any repealed
enactment which it may re-enact with or without amendment and any
consolidation.
1.3 INTERPRETATION
Unless there is something in the subject or context inconsistent therewith:
1.3.1 words importing the singular include the plural and vice versa and
reference to persons or companies shall include bodies corporate;
1.3.2 words importing any gender shall include all genders;
1.3.3 the headings in this Agreement are for convenience only and shall
not affect its interpretation;
1.3.4 any reference to the Executive shall (if appropriate) include his
personal representatives; and
1.3.5 words and phrases used in this Agreement which are defined in the
Companies Xxx 0000 shall have the same meanings in this Agreement as
their respective definitions in the Companies Xxx 0000.
2. EMPLOYMENT
2.1 Subject to the following terms of this Agreement, the Company shall employ
the Executive and the Executive shall serve the Company as a full time
Business Development Director, or in such other capacity of a like status as
the Company may require.
2.2 The Employment shall commence on the Commencement Date and shall continue
(subject to earlier termination as provided in this Agreement) until
terminated by either party giving to the other 6 months' notice of
termination in writing.
2.3 The Executive warrants to the Company that by entering into this Agreement
and performing his duties under it he will not be in breach of any contract
or other obligation binding on him.
3. DUTIES
3.1 The Executive shall perform such duties and, exercise such powers
consistent with his status as may from time to time be assigned to or
vested in him by or under the authority of the Board and shall in all
respects comply with all reasonable and lawful directions and restrictions
made by or under the authority of the Board.
3.2 The Executive's normal place of work shall be at the Company's principal
place of business or at such other place within the United Kingdom as the
Company may from time to time decide.
3.3 The Executive shall be required to travel to such places (whether in or
outside the United Kingdom) and in such manner and on such occasions as the
Company may from time to time decide.
3.4 The Executive may be required in pursuance of the Employment to be engaged
not only on work on behalf of the Company but also on work on behalf of any
Associated Company for the time being and at such place or places as may be
required.
3.5 During the Employment, the Executive shall well, faithfully and diligently
serve the Company and use his utmost endeavours to maintain, extend,
develop and promote its interests, and shall (subject to holidays as
hereinafter provided or unless prevented by ill-health) devote the whole of
his time, attention and abilities during normal business hours to its
affairs provided that he shall also attend to the business of the Company
during such other hours as may reasonably be required for the proper
discharge of his duties hereunder.
3.6 The Executive shall at all times perform his duties with proper skill and
care.
3.7 The Executive shall not at any time during the Employment (without the
prior written consent of the Company which will not be unreasonably
withheld), hereunder engage in any activity which does, or is likely to,
detract from the proper performance of his duties hereunder nor (except in
the course of his duties or with the written permission of the Board)
render any services to nor have any direct or indirect financial interest
in any business entity which is, in part or whole, in a similar field to
the Company or any Associated Company, or is a client of the Company or any
Associated Company provided that nothing contained in this Clause shall
preclude the Executive from holding any shares or other securities (not
exceeding three per cent of the shares or securities of the class concerned
for the time being in issue) in any company whose shares are listed or
dealt in on a recognised stock exchange.
3.8 The Executive shall at all times keep the Board promptly and fully informed
(in writing if so requested) of his conduct of the business, finances or
affairs of the Company. He shall provide such explanations and supply all
information in his possession as the Board may require in connection with
such conduct of the business, finances or affairs of the Company.
4. REMUNERATION
4.1 The Executive shall be paid a basic salary at the rate of Pound 70,000 per
annum (or at such higher rate as may from time to time be agreed in
writing) payable by equal monthly instalments on the 28th day of each month
(or on the previous working day if such day falls on a weekend or bank
holiday). Such salary shall be deemed to accrue from day to day and shall
be inclusive of any remuneration or fees as appropriate to which the
Executive may be entitled as a director of the Company or of any Associated
Company.
4.2 At least once in each 12 months the Company shall review, but shall not be
obliged to increase, the salary payable under this Agreement.
4.3 In addition to his basic salary the Executive shall receive commission
calculated in accordance with any company commission plan in force (the
"Plan") from time to time. Any commission is payable subject to the
following rules:-
(i) Subject to 4.3(ii) below the Company may amend the Plan at any time;
(ii) The Company agrees that, once the Plan for a particular financial
period has been approved by the Board, it will continue to apply
for that financial period without amendment;
(iii) If this Agreement terminates for any reason, the Executive will
only receive commission earned but not yet paid under the Plan
and any payment of the commission made post-termination shall be
made only in accordance with the Plan.
(iv) Any disputes concerning commission will be resolved by the
Managing Director and Finance Director whose decision shall be
binding.
4.4 The Executive's remuneration under this clause 4 and elsewhere under this
Agreement shall be subject to such withholding or deductions as are
required by law to be made or as authorised by the Executive.
5. PENSIONS
Subject to any limit imposed by the Inland Revenue from time to time, the
Company shall during the Employment pay contributions at the rate of 15%
of the Executive's basic monthly salary to an approved personal pension
scheme nominated by the Executive. These contributions will be paid monthly
on the 28th day of each month.
6. EXPENSES AND CAR ALLOWANCE
6.1 The Company shall reimburse to the Executive such traveling, hotel,
entertainment and other out-of-pocket expenses as shall from time to time
be reasonably and properly incurred by him in the course of the Employment
subject to the Executive complying with such guidelines or regulations
issued by the Company from time to time in this respect and upon the
Executive submitting to the Company satisfactory information and evidence
of the same. Any credit card supplied to the Executive by the Company shall
be used solely for expenses incurred by him in the course of the
Employment.
6.2 To assist the Executive in carrying out his duties under the Employment,
the Company shall pay to the Executive a monthly car allowance of Pound 800
on 28th day of each month. In addition the Company shall reimburse to the
Executive all fuel costs attributable to the use of the car for business
purposes.
7. STOCK OPTIONS
7.1 Subject to approval by the Board and subject to the rules of the Company's
Stock Option Plan (the "Plan") the Executive will be entitled to
participate in the Plan. Any benefit given to the Executive will be at the
sole discretion of the Company.
8. HOLIDAYS
8.1 The Executive shall be entitled to 25 working days' holiday in each
calendar year at times convenient to the Company in addition to bank and
other public
holidays on full salary. The entitlement to holiday and, on termination of
the Employment, holiday pay in lieu of holiday accrued but untaken, shall
accrue pro rata throughout each calendar year of the Employment.
8.2 Subject to a maximum of 15 days, the Executive may carry forward any
accrued but untaken holiday to the next calendar year but no further.
9. INSURANCES
9.1 Subject to the Executive's compliance with and satisfaction of the
applicable requirements of such schemes the Executive shall participate in
any private health insurance scheme, death in service benefits and long
term disability schemes as the Company may from time to time maintain for
the benefit of its employees. The identity of the provider of the benefits
shall be at the discretion of the Company as shall the level of cover
provided.
9.2 There shall be no liability on the Company to pay to the Executive any of
the benefits set out in this Clause 9 if the insurers of the benefits fail
to pay all or any amount under the relevant schemes. The provider of any
of the benefits set out in this Clause 9 may be changed at any time by the
Company in its absolute discretion. The Company reserves the right to
terminate or amend the arrangements under this Clause 9 without
replacement at any time in its absolute discretion. In particular, but
without limitation, any of these arrangements may be terminated without
replacement if, in the opinion of the Board, the medical condition of the
Executive is or becomes such that the Company is unable to secure
insurance under the rules of the applicable scheme or otherwise at
reasonable rates or premiums. All benefits under this Clause 9 are subject
to the terms of the applicable benefit scheme and of any related policy of
insurance as in force from time to time.
10. MEDICAL AND SICKNESS
10.1 The Company may from time to time require the Executive to be examined by
a medical adviser nominated by the Company, and the Executive consents to
the medical adviser disclosing the results of the examination to the
Company.
10.2 If the Executive is absent from work due to illness, accident or other
incapacity, he shall deliver or cause to be delivered promptly to the
Company:
10.2.1 in the case of an absence of seven consecutive days or less, a form
of self-certification of illness or accident absence; and
10.2.2 in the case of a longer absence, a certification from a medical
practitioner on the eight day of absence and weekly thereafter.
10.3 Subject to the rights of the Company under Clause 12.1.11, the Executive
shall be entitled to full basic salary (excluding benefits) during any
period of absence due to illness, accident and/or other incapacity (which
is duly certified in accordance with Clause 10.2) less payments made to
the Executive under the Statutory Sick Pay Scheme, sickness benefit and
any permanent health insurance or long term disability insurance in
respect of the period concerned.
The Company has the right to terminate the Executive's employment in
accordance with the notice provisions applicable to him and as provided
elsewhere in this Agreement. For the avoidance of any doubt, this right
still applies when the Executive is absent from work through sickness or
injury even if the consequence of the exercise of this right is that the
Executive will not be able to benefit from this Clause 10.3 or any long
term disability policy.
10.4 If the illness, accident or other incapacity is caused by the act or
omission of a third party the Executive must, at the Company's request,
include in any claim for damages against such third party a claim in
respect of monies paid by the Company under this Clause 10 and must refund
to the Company any damages recovered under that head.
11. CONFIDENTIAL INFORMATION
11.1 Except in the proper performance of his duties or with the prior written
consent of the Company, the Executive will not either during the Employment
or at any time afterwards use or divulge to any person any information of a
private, confidential or secret nature concerning the business, products,
processes or affairs of the Company or any Associated Company or of any
person having dealings with the Company or any Associated Company and which
comes to his knowledge during the course of or in connection with his
employment or his holding any position within the Company or any Associated
Company.
11.2 Confidential information includes, but is not limited to all information,
processes, practices, customer lists, marketing plans, financial
information, staff details of the Company's customers and all other
compilations of information, whether printed, electronic or other media
which relate to the business of the Company or any Associated Company and
the Company's customers and suppliers provided such information is not in
the public domain.
11.3 The Executive will promptly, whenever requested by the Company and in any
event upon the termination of the Employment with the Company, deliver up
to the Company all correspondence and all other documents, papers and
records which may have been prepared by him or have come into his
possession in the course of his employment with the Company (except for any
such documents which may be considered by the Company to be in the public
domain), and all electronic equipment, computer software or hardware and
other property used in connection with the operations of the Company or any
Associated Company, and the Executive may not retain any copies. Title to
and copyright in such correspondence and other documents, papers, records
and property shall vest in the Company.
11.4 Breach of this Clause will normally be regarded as serious misconduct. It
may also lead to further legal action against the individual or companies
involved (the Executive acknowledging that damages may not be an adequate
remedy in respect of any such breach and accordingly that injunctive relief
or other equitable remedies may be sought and obtained by the Company
acting on its own behalf and/or on behalf of any Associated Company).
12. TERMINATION
12.1 The Company shall be entitled to terminate the Employment forthwith if the
Executive shall:
12.1.1 be guilty of dishonesty (whether relating to the Company or any
Associated Company or not) or serious or persistent misconduct or
any other conduct which, in the opinion of the Board, tends to
bring the Executive or the Company or any Associated Company into
disrepute;
12.1.2 without reasonable cause wilfully neglect or refuse to discharge
his duties or to attend to the business of the Company or of any
Associated Company;
12.1.3 commit any material breach of this Agreement (other than a breach
which (being capable of being remedied) shall be remedied
forthwith upon the Executive being called upon to do so in writing
by the Board);
12.1.4 be convicted of any criminal offence (excluding an offence under
road traffic legislation in the United Kingdom or elsewhere, for
which the Executive is not sentenced to any term of imprisonment,
whether suspended or not);
12.1.5 in the opinion of the Board, fail to exercise reasonable skill
and care in the performance of his duties;
12.1.6 have an order made by any competent court for the appointment of
a receiver or other person to exercise powers with respect to his
property or affairs;
12.1.7 become bankrupt or make any composition or enter into any deed of
arrangement with his creditors;
11.1.8 be disqualified from holding office in any company;
12.1.9 become of unsound mind or a patient under the Mental Health Xxx
0000;
12.1.10 resign as a director of the Company (or of any Associated
Company) except at the request of the Company (or such Associated
Company); or
12.1.11 be or become incapacitated by illness or otherwise from
performing his duties hereunder for a period of 120 consecutive
days or for periods aggregating 120 days or more in any period of
fifty-two weeks.
12.2 Any delay or forbearance by the Company in exercising any right of
termination shall not constitute a waiver of it.
12.3 If not previously terminated, the Employment shall in any event
automatically terminate at the end of the day on which the Executive
attains the age of 60 years.
13. POST TERMINATION RESTRICTIONS
13.1 In this Clause 13:
(A) "Restricted Business" means the business of the Company and the
Associated Companies at the time of the termination of the Employment
with which the Executive was involved to a material extent during the
period of 12 months ending on the date of the termination of the
Employment;
(B) "Restricted Customer" means any firm, company or other person who,
during the period of 12 months ending on the date of the termination of
the Employment, was a customer of or in the habit of dealing with the
Company or any Associated Company and with whom the Executive had contact
or about whom the Executive became aware or informed in the course of the
Employment; and
(C) "Restricted Employee" means any person who, at the date of the
termination of the Employment, either:-
(i) was employed by the Company or any Associated Company at a management
level and was a person with whom the Executive had material contact; or
(ii) was employed by the Company or any Associated Company and reported to
the Executive directly or indirectly at any time during the 12 months
prior to the termination of the Employment.
13.2 The Executive will not, for a period of 12 months after the termination
of the Employment, solicit or endeavour to entice away from the Company
or any Associated Company the business or custom of a Restricted
Customer with a view to providing goods or services to that Restricted
Customer in competition with the Restricted Business.
13.3 The Executive will not, for a period of 12 months after the termination
of the Employment, provide goods or services to or otherwise have any
business dealings with any Restricted Customer in the course of any
business concern which is in competition with the Restricted Business.
13.4 The Executive will not, for a period of 12 months after the termination
of the Employment, in the course of any business concern which is in
competition with any Restricted Business offer employment to or
otherwise endeavour to entice away from the Company or any Associated
Company any Restricted Employee.
13.5 The Executive will not, for a period of 6 months after the termination of
the Employment, be engaged in or concerned in any capacity in any
business concern with is in competition with the Restricted Business.
This clause shall not restrain the Executive from being engaged or
concerned in any business concern in so far as his duties or work shall
relate solely:-
(A) to geographical areas where the business concern is not in competition with
the Restricted Business; or
(B) to services or activities of a kind with which the Executive was not
concerned to a material extent during the period of 12 months ending on the
date of the termination of the Employment.
13.6 The obligations imposed on the Executive by this Clause 13 extend to him
acting not only on his own account but also on behalf of any other firm,
company or other person and shall apply whether the Executive acts directly
or indirectly.
13.7 Each of the covenants and obligations on the Executive's part contained in
each part of this Clause 13 shall be deemed to be separate and severable
and enforceable by the Company accordingly. In the event that any of the
restrictions shall be held void but would be valid if part of the wording
thereof was deleted, such restriction shall apply with such deletion as may
be necessary to make it valid and effective.
14. LITIGATION ASSISTANCE
The Executive covenants and agrees that he shall, upon reasonable notice,
during the Employment and for two years after the termination thereof,
furnish such information and proper assistance to the Company as may be
reasonably required by the Company in connection with any litigation
in which it or any Associated Company is, or may become, a party. The
Company shall reimburse the Executive for all reasonable out of pocket
expenses incurred by him in furnishing such information and assistance.
15. DIRECTORSHIP
Upon any termination of the Employment, the Executive shall at the request
of the Company resign from office as a director of the Company and any
Associated Company (without prejudice to the rights of any party arising
out of this Agreement or the termination of the Employment) and without any
claim for compensation for loss of office. If the Executive fails to do so,
the Company is irrevocable authorised to appoint some person in his name
and on his behalf to do all such things and execute all such documents as
may be necessary for or incidental to give effect to his resignation.
16. SUSPENSION
The Company has the right at any time (including, without limitation,
during a period of notice terminating the Employment whether the notice was
given by the Executive or the Company) to suspend the Executive from the
performance of his duties for as long and on whatever terms it considers
appropriate, and this may include a requirement that he will not attend at
the Company's premises. Any such suspension shall be on the basis that the
Company continues to pay the Executive's salary and any benefits to which
he is entitled for the duration of the period of suspension.
17. INTELLECTUAL PROPERTY
17.1 The Executive will promptly disclose to the Company any invention,
development, discovery, improvement, new software or source code or design
made by him whether alone or with others during the performance of his
duties as an employee and whether or not the same as capable of protection
as intellectual property by patent, copyright, design right, as a trade
xxxx or by other means and he shall not use, disclose to any person or
exploit the same without the expense prior written consent of the Company.
17.2 Subject to any rights granted to the Executive by the Patents Xxx 0000
which cannot be excluded by agreement, any invention discovery design
development improvement whether or not capable of protection by patent
registered design or otherwise and any copyright in any document, letter,
software or other work protectable by copyright suggested written, created,
designed, invented, conceived or acquired by the Executive during the
course of his employment ("the Intellectual Property") shall belong
absolutely to the Company and to the extent that some or all of the rights
pertaining to the Intellectual Property do not vest automatically in the
Company the Executive hereby as beneficial owner assigns to the Company all
his rights whatsoever in the Intellectual Property. The Executive will
provide the Company with full details and information with regard thereto
and will at the request and expense of the Company apply to join with the
Company in applying for registration of any of the Intellectual Property in
the United Kingdom and/or in any other part of the world as specified by
the Company.
17.3 The Executive will at the Company's request and expense do all such things
and sign all documents or instruments reasonably necessary in the opinion
of the Company to obtain, defend and enforce its rights in the Intellectual
Property and in the meantime will hold all interest therein in trust for
the Company. The Executive hereby irrevocably appoints the Company to be
his attorney in his name and on his behalf to execute any such document or
instrument 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
16 and in favour of any third party a certificate in writing signed by any
Director or Secretary of the Company that any instrument or act falls
within the authority hereby conferred shall be conclusive evidence that
such is the case.
17.4 The Executive hereby waives all moral rights in any copyright works
originated, conceived, written or made by him (either alone or with others)
and agrees not to claim that any treatment, exploitation or use of the said
works infringe such moral rights (including but not limited to the right to
be identified, the right to object to derogatory treatment and the right
against false attribution).
17.5 Each of the obligations under this Clause 17 is enforceable independently
of each of the others and its validity will not be affected if any of the
others is unenforceable to any extent.
17.6 Rights and obligations under this Clause 17 shall continue in force after
termination of the Employment in respect of Intellectual Property and
shall be binding on the Executive's personal representatives.
18. RECONSTRUCTIONS
If the Company is to be wound up for the purpose of a reconstruction or
amalgamation and the Company procures that the Executive is offered
employment by the reconstructed or amalgamated company on similar terms
to the terms of this Agreement for the remainder of the Employment, the
Executive shall have no claim against the Company in respect of the
termination of his employment under this Agreement.
19. OTHER AGREEMENTS
19.1 This Agreement shall, from the Commencement Date, operate in substitution
for any terms of service previously in force (whether written or oral)
between the Company and/or any Associated Company and the Executive and
the Executive acknowledges and warrants that there are no agreements or
arrangements whether written, oral or implied between the Company or any
Associated Company and the Executive relating to the employment of the
Executive other than those expressly set out or referred to in this
Agreement and that he is not entering into this Agreement in reliance on
any representation not expressly set out herein.
19.2 The Executive shall comply with all of the Company's rules, regulations
and policies from time to time in force. In the event of any conflict
between such rules, regulations and policies and this Agreement, this
Agreement shall prevail.
20. NOTICES
20.1 Any notice to be given by either party hereunder shall be in writing and,
in the case of the Company, may be delivered or sent by first class post
or telex or facsimile process to the Company at its registered office for
the time being and, in the case of the Executive, may be delivered to him
or sent by first class post to his usual or last known address.
20.2 Unless the contrary is proved, any such notice or other document shall be
deemed to have been served:
20.2.1 if delivered, at the time of delivery;
20.2.2 if posted, at 10.00 a.m. on the second working day after it was
put into the post; or
20.2.3 if sent by telex or facsimile process, at the expiration of 2
hours after the time of despatch, if despatched before 3.00 p.m.
on any working day, and in any other case at 10.00 a.m. on the
working day following the date of despatch.
20.3 In proving such service it shall be sufficient to prove that delivery was
made or that the envelope containing such notice or other document was
properly addressed and posted as a pre-paid first class letter, or that the
telex or facsimile message was properly addressed and despatched as the
case may be.
21. MISCELLANEOUS
21.1 Any amendment to this Agreement shall be in writing signed by the parties
and expressed to be for the purpose of such amendment.
21.2 This Agreement shall be governed by and construed in accordance with
English law.
21.3 The expiration or determination of the Employment howsoever arising, shall
not affect any provision of this Agreement which is expressed to operate or
have effect thereafter, and shall be without prejudice to any right of
action already accrued to either party in respect of any breach of this
Agreement by the other party.
22. STATUTORY PARTICULARS
22.1 The following particulars are given in compliance with the Employment
Rights Act 1996 so far as not already taken into account elsewhere in this
Agreement:
22.1.1 The Executive's period of continuous employment with the Company
begins on 1st August.
22.1.2 There are no specific disciplinary rules applicable to this
Employment but the Executive is expected at all times to conduct
himself in a manner consistent with his senior status.
22.1.3 In the event of the Executive either being dissatisfied with any
disciplinary decision or wishing to seek to redress any grievance
relating to the Employment, he should first apply to the Managing
Director. If the matter is not resolved within seven days, the
Executive may appeal to the Board which will afford to the
Executive the opportunity of a full and fair hearing at a meeting
of the Board or a duly appointed Committee thereof whose decision
shall be final and binding.
22.1.4 A Contracting Out Certificate under the Xxxxxxx Xxxxxxx Xxx 0000
has not been issued in respect of the Employment.
22.1.5 There are no collective agreements which affect the terms and
conditions of the Employment.
IN WITNESS whereof this Agreement has been executed as a deed by the parties on
the date first above written.
EXECUTED as a DEED by Xxxxxxx Xxxxxx )
acting on behalf of the /s/ Xxxxxxx Xxxxxx
Company in the presence of: ) ------------------------------
Director
EXECUTED as a DEED by the Executive ) /s/ Xxxxxx Xxxxx
in the presence of: ) ------------------------------
Executive
