ViewSonic Sarl Letterhead]
[ViewSonic
Sarl Letterhead]
Private
& Confidential
XXXXXX
XXXX
Contents
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Clause
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Page
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1
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Definitions
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3
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2
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Termination
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3
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3
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Severance
Payment
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4
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4
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Tax
indemnity
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4
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5
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Secrecy
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5
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6
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Confidential
Information and Covenants
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5
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7
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Company
property
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6
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8
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Breach
of agreement and compensation payable to the Employee
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6
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9
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Settlement
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7
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10
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Warranty
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7
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11
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Miscellaneous
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8
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12
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Whole
agreement
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8
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Schedule
1 Certificate of Adviser
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10
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2
THIS
AGREEMENT is
dated 2008
and is made
BETWEEN:
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(1)
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Viewsonic
SARL, Parc des Barbanniers, 0 xxxxx xxx Xxx
Xxxxxxxx, 00000 Xxxxxxxxxxxxx, Xxxxxx, registration number
Nanterre 404 220 139, (“the Company”),
and
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(2)
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Xxx
Xxxxxx of 000X Xxxxxxx Xxxxxxxxx, 0000 Xxxxxxx, Xxxxxxx (the
“Employee”).
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WHEREAS:
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(A)
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The
Employee has been hired by the Company with a commencement date of
18
October 2004, and was appointed as Director pursuant to an employment
contract dated 10 January 2006.
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(B)
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On
26 November 2007 ViewSonic Corporation announced a reorganization
of its
European operations.
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(C)
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In
order to settle any potential dispute arising out of this reorganization,
the Employee and the Company have agreed to compromise on the terms
and
conditions as follows.
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(D)
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The
Company is entering into this agreement for
itself.
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IT
IS AGREED as follows:
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1
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Definitions
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1.1
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In
this Agreement references to specific clauses are references to clauses
in
this Agreement unless otherwise stated
and:
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“Associated
Company” means an associated company (within the meaning of section 416(1)
Income and Corporation Taxes Act 1988) of any of the Companies.
“Employment”
means the Employee’s employment with the Company, the terms of which are set out
in the Employment Contract.
“Employment
Contract” means the service agreements entered into between the Company and the
Employee respectively which is dated 10 January 2006.
“Severance
Payment” means the payment more particularly described in clause 3.
“Termination
Date” means the date more particularly described in clause 2.1.
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2
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Termination
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2.1
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The
Employee’s employment with the Company under the terms of the Employment
Contractwill terminate on 5 January 2008 (“the Termination
Date”).
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3
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2.2
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Upon
his request, the Employee has been released from performing his notice
period. As a consequence, no payment shall be owed to him in relation
to
this notice period.
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3
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Severance
Payment
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3.1
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Subject
to the Employee’s compliance with his obligations under this Agreement,
the Company shall pay to the Employee and without admission of liability
the gross amount of €269 551 (two hundred and sixty nine thousand, five
hundred and fifty one euros) (the “Severance
Payment”).
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3.2
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It
is expressly agreed that this Severance Payment is inclusive of all
and
any indemnities owed upon termination as provided by the law, the
applicable collective agreement, and the Employment Contract, including
any accrued holidays.
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3.3
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The
Employee acknowledges that this amount is in compensation for loss
of
office and termination of Employment, and all the prejudice, damages,
claims or rights of action whatsoever having arisen or likely to
arise out
of the performance and/or the termination of the
Employment.
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3.4
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Any
liability to tax or social contribution on the Severance Payment
and on
any other benefits provided to the Employee pursuant to this Agreement
shall be the Employee’s alone, save that the Company will remain liable to
pay Employer’s social security
contributions.
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3.5
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The
Severance Payment shall be paid within 14 days of the signature of
this
Agreement.
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4
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Tax
indemnity
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4.1
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The
Company makes no warranty as to the taxable status of the Severance
Payment and benefits and accordingly the Employee undertakes that
if any
of the Companies or any of their Associated Companies are called
upon to
account to the French taxation or social security authorities or
similar
authority in any other jurisdiction for any income tax, Employee’s
National Insurance contributions, social security or similar liabilities
interest and/or penalties thereon arising in respect of the payments
made
and benefits provided under this Agreement, (such income tax, Employee’s
National Insurance or social security contributions, interest and/or
penalties referred to in this Agreement as the “Excess Tax”), and if any
of the Companies or any other company pays the Excess Tax to the
relevant
authority in any jurisdiction, the Employee will, at the written
request
of such company and provided the Employee has received notification
of the
amount due within 14 days of the Company or any associated company
as may
be the case, becoming aware of the claim, immediately pay to such
company
an amount equal to the Excess Tax (on an after-tax basis) provided
that
before paying the Excess Tax the Company shall afford the Employee
a
reasonable opportunity (in the opinion of the Company) to challenge
the
amount of Excess Tax with the relevant
authority.
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4
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5
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Secrecy
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5.1
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The
Company and the Employee undertake to each other that they will not,
whether directly or indirectly, make, publish or otherwise communicate
any
disparaging or derogatory statements, whether in writing or otherwise,
concerning each other, including in the case of the Company or any
of its
Associated Companies or any of its officers agents or
employees.
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5.2
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The
Employee acknowledges that this Agreement will be publicly filed
with the
U.S. Securities and Exchange Commission (the “SEC”) and will be publicly
available on the SEC’s XXXXX system. The Employee further acknowledges
that a summary of the terms hereof shall be publicly disclosed in
periodic
reports filed with the SEC by ViewSonic Corporation, a Delaware
corporation.
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5.3
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The
Company and the Employee agree not to make or cause to be made (directly
or indirectly) any statement to the media concerning the Employment
or its
termination by the Company without the prior written consent of the
other,
as the case may be.
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6
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Confidential
Information and Covenants
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6.1
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The
Employee undertakes not to divulge to, or commercially make use of,
for
his own benefit or purposes or for the benefit or purpose of any
other
person, firm, corporation, company, association or business entity,
any
trade secrets or confidential information (including but not limited
to
terms of contracts or arrangements, existing and potential projects,
financial information regarding customers, clients or suppliers,
disputes,
business development and/or marketing programmes and plans) belonging
to
or which relate to the affairs of the Company or any Associated Company
or
any of its customers, clients or
suppliers.
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6.2
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The
Employee also confirms that he will not for a period of 6 months
from the Termination Date, (whether alone or jointly with or as
a director, manager, agent, consultant, partner or employee of any
person, firm, company or other organisation) directly or indirectly
carry on or be engaged in any activity or business in any of the
member
states of the European Union or Switzerland (the “Restricted
Area”) with or for Samsung, LG or Acer or any other firm, company
or other organisation in respect of which 40 per cent. or more of
its
business is engaged or concerned with the supply of visual display
units,
LCDs, projectors, computer monitors in the
Restricted Area. The Company will release any third party, from any
non
solicitation and/or non-dealing obligations (including, without
limitation, clients, prospective clients and employees) in respect
of the
Employee provided that such third party and the Employee agree to
comply
fully with the provisions of this clause 6. This clause
6.2 varies all and any post-termination restraints already set out
in the
Employment Contract and where there is any inconsistency between
the
wording of this Agreement and the Employment Contract, the wording
of this
Agreement will prevail.
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5
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6.3
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Nothing
in this Clause 6 shall prevent the Employee from making a protected
disclosure in accordance with law provided that the disclosure is
made in accordance with the relevant provisions of
such law.
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7
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Company
property
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7.1
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The
Employee represents and confirms that he has returned on or before
the
Termination Date to the Companies all equipment, records, correspondence,
documents, files and other information of any description (whether
originals, copies or extracts) belonging or licensed to the Company
or any
of its Associated Companies and that he has not retained any copies
and
that he has deleted irretrievably any information relating to the
business
of the Company on any magnetic or optical disk or memory which is
in his
possession or control outside the premises of the
Company.
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7.2
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In
addition the Employee will provide the Company with all necessary
information as will allow such person as the Company may determine
to
access any computer equipment owned by the Company or any Associated
Company and used by the Employee.
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8
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Breach
of agreement and compensation payable to the
Employee
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8.1
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The
Employee agrees that if, having entered into this Agreement, the
Employee:
(a) breaches the provisions of clauses 5 (Secrecy) and/or 6 (Confidential
Information and Covenants) and/or the warranties at Clause 10; and/or
(b)
(on the basis that the Company is entering into this Agreement in
reliance
upon the warranties given by the Employee at clause 10.1) brings
any
proceedings (including making complaints to professional or trade
or
regulatory bodies) relating to the Employment (including its termination)
against the Company, any Associated Company or its or their officers,
employees or agents; and/or (c) is awarded any compensation or damages
by
an employment tribunal or civil court, the Employee will,
without prejudice to any other remedies that the Company may have,
at the
Company’s election forthwith:
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8.1.1
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repay
(or the Company will retain if not at that time already paid) the
Severance Payment (less any statutory redundancy payment) to the
Company
and that sum will be recoverable as a debt;
or
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8.1.2
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pay
a sum equivalent to the sum of any compensation or damages awarded
to the
Employee to the Company.
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8.2
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In
addition, the Employee will indemnify the Company against all costs
(legal
or otherwise) incurred by the Company in recovering or seeking to
recover
the Severance Payment from the Employee and/or any compensation or
damages
awarded to the Employee.
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8.3
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Nothing
in this clause shall prevent the Employee from taking any steps,
including
the commencement of legal proceedings, to enforce the terms of this
Agreement.
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6
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9
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Settlement
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9.1
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The
Employee acknowledges that he has carefully considered the facts
and
circumstances relating to the Employment and the termination thereof
and
that he considers that the payments referred to in this agreement
are
reasonable in the circumstances. The Employee agrees that he will
not
institute any proceedings or complaints before an employment tribunal
or
court in either France or in any other jurisdiction arising out of
or in
connection with the Employment or its
termination.
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9.2
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The
Employee confirms that he is not aware of having any claim for personal
injury against the Company or any Associated Company at the date
of this
Agreement.
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9.3
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The
Employee agrees that the terms of this Agreement are in full and
final
settlement:
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9.3.1
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of
any claims whether at common law or otherwise and in any jurisdiction
in
the world including without limitation France and the United States;
and
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9.3.2
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which
he may have against the Company or any Associated Company or its
or their
officers, directors, employees, shareholders or agents arising out
of or
connected with his Employment or its termination or the Employment
Contract or its termination. The Employee hereby agrees that, except
for
the sums and benefits referred to in this Agreement, no other sums
or
benefits are due to him from the Company or any Associated
Company.
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9.4
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The
Company acknowledges that the terms of this Agreement are full and
final
settlement of all and any claims of which it or Viewsonic Corporation
or
its or their officers, directors, employees, stockholders, shareholders,
or agents may have against the Employee arising directly out of the
Employment or its termination to the extent that the board of the
Company
is aware of any such claim as at the date of this
Agreement.
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10
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Warranty
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10.1
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The
Employee represents and warrants:
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10.1.1
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that
he has received advice from an independent legal adviser” (“the Adviser”)
as to the terms and effect of this Agreement (and in particular its
effect
on the Employee’s ability to pursue his rights before an employment
tribunal or a labour court) and that he will procure that the Adviser
forthwith provides a certificate in the form of Schedule 3 to this
Agreement and that in such Schedule the name and other relevant details
of
the Adviser are correctly set out;
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10.1.2
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that
he has raised with the Adviser all facts and issues relevant to the
Employment and its termination; and
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7
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10.1.3
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that
the Adviser has advised him that the claims and prospective proceedings
listed at clause 9 and Schedule 1 are all of the claims and prospective
proceedings that he has against the Company, any Associated Company
or
their, officers, directors, agents and employees arising out of or
in
connection with his Employment (including the termination thereof)
and
that he has no other claim.
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10.2
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The
Employee further warrants that he will on the request of the Company
or
any Associated Company, assist it or them in any threatened or actual
litigation concerning it or them where he has in his possession or
knowledge any facts or other matters which the Company or any Associated
Company reasonably considers is relevant to such legal proceedings
(including but not limited to giving statements/affidavits, meeting
with
the legal and other professional advisers and attending any legal
hearing
and giving evidence). Such assistance will also be given in any
internal investigation or any regulatory proceedings. The
Company will reimburse the Employee for reasonable expenses properly
incurred by him in giving such
assistance.
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10.3
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The
Employee warrants and represents that he has not at any time done
or
failed to do anything which amounts to a repudiatory breach of any
express
or implied term of the Employment which would (or would have) entitled
the
Company to terminate the Employment without notice or payment in
lieu of
notice.
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11
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Miscellaneous
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11.1
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This
Agreement shall be governed by and interpreted in accordance with
English
Law. The parties hereby submit to the jurisdiction of the High
Court of Justice in England.
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11.2
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Subject
to any provision which specifically refers to an Associated Company
and
which is intended to confer benefits on any such Associated Company,
no
term of this Agreement is enforceable by a person who is not party
to
it.
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12
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Whole
agreement
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12.1
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This
Agreement sets out the entire agreement between the parties and supersedes
all prior discussions between them or their advisers and all statements,
representations, terms and conditions, warranties, guarantees, proposals,
communications and understandings whenever given and whether orally
or in
writing. If signed by all parties to the Agreement it shall
then, notwithstanding being marked “without prejudice” or “without
prejudice subject to contract” and subject to any written statement to the
contrary, be treated as an open and binding
agreement.
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12.2
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The
Agreement may not be modified or amended except in writing signed
by all
the parties.
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8
IN
WITNESS whereof this Agreement has been executed the day and year first
above written.
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SIGNED
by Natalia Bikkenina, HR Director
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) |
/s/
Natalia Bikkenina
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for
and on behalf of the Viewsonic SARL
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) | |
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dated
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) |
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SIGNED
by Xxx Xxxxxx
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) |
/s/
Xxx Xxxxxx
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the
Employee
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) | |
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Dated
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) |
9
Schedule 1
Certificate
of Adviser
I
confirm
that I have given independent legal advice to Xxx Xxxxxx as to the terms and
effect of the above Agreement and in particular its effect on my client’s
ability to pursue his rights before an employment tribunal or a labour court
in
France.
I
confirm
that at the date I gave the advice referred to above there was in force a policy
of insurance which covers the risk of a claim by Xxx
Xxxxxx in respect of any loss arising in consequence of
that advice.
| Signed |
/s/
Xxxxx Xxxxxxx
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| Signed |
Xxxxx Xxxxxxx
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| Firm |
Xxxxxx
Xxxxxxxx
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| Address of firm |
00-00
Xxxxxxx Xxxxx,
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Xxxxxx
X0X 0XX
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