EXHIBIT 10.20
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SERVICE CONTRACT
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THIS AGREEMENT is made the 28th day of October, 1998
BETWEEN:
(1) EUROPEAN MICRO HOLDINGS INC. a company incorporated in the State of Nevada
(United States of America) with the State of Nevada file no. 28914-1997
and having its place of business at 6073 NW 167 Street, Unit C-25, Miami,
Florida 33015 United States of America (the "Employer")
(2) MICHAEL CHARLES GESNER of c/o Arthur Andersen, Corporate Service PTE Ltd,
10 Hoe Chiang Road, # 18-00 Keppel Towers, Singapore 089315 (the
"Executive")
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1. In this Agreement the following words and expressions shall have the
following meanings:
"the Board" means the Board of Directors of the
Employer and includes any committee
of the Board duly convened by it
"the Commencement Date" means the 28th day of October, 1998
"the Company" Sunbelt (UK) Limited
"EM Group Company" means the Employer and any company
which is a subsidiary or affiliate of
the Company
"the Employment" means the employment established by
this Agreement
"Intellectual Property" means (i) every invention
discovery design or improvement (ii)
every work in which copyright may
subsist, and (iii) moral rights as
defined by s 77 and s 80 of the
Copyright Design and Patents Act 1988.
"$" means dollars of the United States of
America
"the Sale Agreement" means a contract made the
day of October 1998 between the
Executive and European Micro Plc.
"the Termination Date" means the termination date of the
Employment under this Agreement
howsoever terminated.
1.2. The headings in this Agreement shall not affect its interpretation
or construction.
1.3. Any reference in this Agreement to any statutory provision includes
any statutory modification or re-enactment of it or the provision
referred to.
2. EMPLOYMENT
The Employer shall employ the Executive and the Executive agrees to act as
Managing Director of the Asian subsidiary and as a Director of the Company or
any EM Group Company on the terms set out in this Agreement.
3. FREEDOM TO TAKE UP THE APPOINTMENT
The Executive warrants that by virtue of entering into this Agreement he will
not be in breach of any express or implied terms of any contract or of any other
obligation binding upon him.
4. PERIOD
The Executive's Employment shall commence with effect from the Commencement Date
and shall (subject as hereinafter provided) be for an initial fixed term of 2
years and 3 months and shall continue thereafter until terminated by either
party giving to the other not less than 6 months' written notice to expire on or
any time after the expiry date for the initial fixed term.
5. DUTIES OF THE APPOINTMENT
5.1. The Executive shall faithfully and diligently perform those duties
of his appointment and exercise such powers consistent with them
which are from time to time assigned to or vested in him and shall
use his best endeavours to promote the interests of the Employer and
any EM Group Company for which he is required to perform duties.
5.2. The Executive shall (without further remuneration) if and for so
long as the Executive is so required by the Company:
(i) carry out the duties of his appointment on behalf of any EM
Group Company
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(ii) act as a director of any EM Group Company or hold any other
appointment or office as nominee or representative of the
Employer or any EM Group Company
(iii) carry out such duties and the duties attendant on any such
appointment as if they were duties to be performed by him on
behalf of the Company.
5.3. Carry out his primary duties to achieve so far as he is able the
targets set out in the Sale Agreement for the Asian Subsidiary as
defined therein.
6. OBEDIENCE AND REPORTING
The Executive shall obey all lawful and reasonable directions of the Board and
at all times keep the Board promptly and fully informed (in writing if so
requested) of his conduct of the business or affairs of the Company and any EM
Group Company and provide such explanations as the Board may require.
7. DEVOTION TO DUTIES
7.1. The Executive shall during the term of this Employment devote
substantially the whole of his time, attention and abilities to the
business and affairs of the Company unless prevented by ill health
from so doing and with the exception of PC Wise Inc. shall not
during the Employment either on his own account or as the Company of
others or otherwise be engaged or concerned in any business other
than that of the Company or any EM Group Company or accept any other
engagement or public office except with the prior consent in writing
of the Company but the Executive may nevertheless be or become a
minority holder of any securities which are quoted on a recognized
investment exchange.
7.2. The Executive shall not be prevented from having any shareholding in
a company which exists at the date of this Contract.
7.3. The Executive will be allowed to become a Shareholder in a company
which does not directly or indirectly compete with the Company or
any EM Group Company provided that consent is first obtained from
the Company in writing such consent not to be unreasonably withheld.
8. COMPLIANCE/DEALINGS IN "SECURITIES"
The Executive shall during his Employment and for twelve (12) months after the
termination of his Employment comply and shall procure that his minor children
shall comply with all applicable rules of law, any recognized investment
exchange regulations including the "Model Code for Securities Transactions by
Directors of Listed Companies' issued by the International Stock Exchange of the
United Kingdom and the Republic of Ireland Limited and any Company policy issued
in relation to dealings in shares, debentures or other securities of the Company
and any EM Group Company or any unpublished price sensitive information
affecting the securities of any other company.
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9. COMPLIANCE/PROPER USE OF FUNDS
9.1 The Executive shall not use any funds for any unlawful contribution,
endorsement, gift, entertainment or other unlawful expense relating
to political activity, or make any direct or indirect unlawful
payment to any foreign or domestic government official or employee
and shall comply with the United States Foreign Corrupt Practices
Act of 1977 and any other applicable law of the United States or any
other country in which the Executive is conducting business on
behalf of the Company or any of its subsidiaries or affiliates
relating to improper payments to governmental representatives.
9.2 Failure to comply with clause 9.1 shall constitute gross misconduct
and may result in the termination of the Executives contract of
employment in accordance with clause 23 hereto.
10. PLACE OF WORK
10.1. The Executive shall work in Singapore for a period of one year from
the date hereof and thereafter in such place as may be agreed.
11. HOURS OF WORK
There are no normal fixed working hours for the Employment. The Executive is
expected to work at such times as the efficient and conscientious discharge of
his duties hereunder requires.
12. REMUNERATION
12.1. During the Employment the Executive shall receive as remuneration a
basic salary at the rate of $50,000 per annum to be paid by equal
monthly installments on the last day of each calendar month. Any
increase in remuneration shall be notified in writing to the
Executive and the details thereof shall be entered in the table in
Schedule 1 to the Company's signed copy of this Agreement and
initialed by an officer of the Company.
12.2. In addition to the basic salary, the Executive shall receive a bonus
at a rate of 0.5% of the level of purchases by any EM Group Company
for which the Executive is responsible of Non Nova Products. For the
first six months of this Agreement, the Company guarantees the
payment of $2,000 per month in bonuses to the Executive. All bonuses
shall be payable monthly in arrears. To be eligible for bonuses the
Executive must still be in service and not under notice of
termination.
12.3. The remuneration, bonuses and allowances shall unless otherwise by
agreement in writing by the Company be inclusive of any fees or
other remuneration which the Executive would otherwise be entitled
to receive from the Company or any EM Group Company in connection
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with the performance of the duties delegated to him under this
Agreement.
12.4. The provisions of this clause shall be reviewable annually by
agreement.
13. ALLOWANCES
13.1 During the employment the Executive shall receive a Housing
Allowance of $6,000 per month for the first four months of this
Agreement and $4,000 per month for the following eight months of
this Agreement and thereafter for so long as he shall be required by
the Board to reside in Singapore.
13.2 In addition to the above, the Executive shall receive an Education
Allowance of up to $28,000 per annum for so long as he shall have
children in education in Singapore, the Education Allowance payable
shall not exceed $14,000 in respect of any one (1) child of the
Executive.
13.3 The Company shall pay for the air fares of the Executive and/or his
family up to $13,044 together with the costs of one round trip for
the Executive and his family to and from the United States or Europe
per year.
14. CAR
14.1. The Executive shall receive a car allowance of $3,000 per month to
provide a motor vehicle for his use in performing his duties The
Executive shall maintain service tax and comprehensively insure the
car as appropriate and shall bear all running expenses of the car
including fuel consumed during private use of the car. The Executive
shall ensure that he has at all times a current valid license to
drive private motor cars.
15. EXPENSES
15.1 In addition to his basic salary hereunder the Executive shall be
reimbursed the amount of all reasonable traveling, hotel,
entertainment and other expenses properly and necessarily incurred
and defrayed by him in the discharge of his duties hereunder
(including "professional fees"). The Executive shall produce to the
Company at its request all supporting vouchers and documents in
respect of such expenses. The Company will also pay any telephone
expenses incurred by the Executive in relation to this Contract of
Employment upon production of supporting bills in respect of such
expenses.
15.2 The Executive shall be entitled to claim his reasonable removal
expenses incurred pursuant to this Agreement. Up to $10,000 and
shall be payable upon the provision by the Executive of receipts in
respect of such expenses.
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16. PENSION AND OTHER BENEFITS
16.1 No pension contributions shall be paid by the Company on behalf of
the Executive. The Executive will however be entitled to private
health insurance for the benefit of himself, his spouse and his
children, if any, during the term of this Agreement.
16.2 The Company shall pay the Executive's current life assurance policy,
such policy to continue for two years, the proceeds of such policy
to be for the benefit of the Executive's family or estate, and the
Company and the Executive shall take all necessary actions and enter
into all necessary documentation to ensure that such is the case so
that the Company shall have no liability to make any payments other
than in respect of any proceeds of the said policy as received by it
(and after making due allowance for any liability to tax on any sum
which the Company have so received).
16.3 The Executive shall have the right to subscribe for up to 5,000 EMCC
Shares as defined in the Agreement at the mid-price for the same on
NASDAQ at the date of this agreement at any time after 3 years. This
option shall lapse if the Executive shall terminate this agreement
before the option is exercised.
17. HOLIDAYS
17.1. The Executive shall be entitled (in addition to normal bank and
other public holidays) to twenty (20) days paid holiday in each
calendar year at such times as shall be convenient to the Company
and such additional holidays as the Board shall approve.
17.2. The Executive shall not be entitled to carry forward any unused
holiday entitlement from one holiday year to the next without the
written consent of the Company.
18. SICKNESS OR INJURY
18.1. The Executive agrees that at any time during the course of the
Employment he shall at the request of the Employer submit himself to
a medical examination by a registered medical practitioner nominated
by the Employer. The purpose of such medical examination shall be to
determine whether there are any matters which might impair the
Executive's ability to perform his duties under this Agreement and
accordingly the Executive shall give such authority as is required
for the Company's nominated doctor to disclose to the Employer the
findings. All expenses associated with obtaining the report will be
borne by the Employer.
18.2. In the event that the Executive is unable to perform his duties
under this Agreement by reason of sickness or injury for a period of
seven (7) days or more, the Executive shall if required to do so by
the Employer provide the Employer with a medical certificate in
respect of the whole period of the absence. Immediately following
his return from any period of absence the Executive shall complete a
self-certification form detailing the reason for the absence.
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18.3. During the Executive's first ten (10) weeks of absence he will
receive ninety percent (90%) of his average weekly earnings
calculated by taking the total of his earnings over the previous
twelve months and dividing the same by fifty two (52). At the end of
such ten (10) week period any further payment will only be made to
the Executive at the discretion of the Board.
18.4. The Employer shall have the right to deduct from the remuneration
paid to the Executive any statutory sick pay or other social
security benefits which he is entitled to claim in consequence of
sickness or accident or payable to him under any scheme for the time
being in force of which by virtue of his employment by the Employer
he is a non-contributory member.
18.5. In the event that the Executive is incapable of performing his
duties by reason of injury sustained wholly or partially as a result
of actionable negligence or breach of any statutory duty on the part
of any third party all payments made to the Executive by the
Employer by way of remuneration shall to the extent that
compensation is recoverable from that third party constitute loans
by the Company to the Executive (notwithstanding that as an interim
measure income tax has been deducted from payments as if they were
emoluments of employment) and shall be repaid when and to the extent
that the Executive recovers compensation for loss of earnings from
that third party by action or otherwise.
18.6. The Company will maintain on behalf of the Executive the permanent
health insurance scheme currently in place during the term of this
Agreement.
19. CONFIDENTIALITY
The Executive shall not, either during the Employment, otherwise than in the
proper course of his duties, or thereafter, without the consent in writing of
the Employer being first obtained, use directly or indirectly, divulge to any
person, firm or company and shall during the continuance of the Employment use
his best endeavours to prevent the publication, disclosure or non-authorized use
of any confidential information of the Employer or any EM Group Company or any
of its or their secrets, dealings or transactions whatsoever which may have come
or may come to his knowledge during his Employment or previously or otherwise
and which include but are not limited to the following matters:
(i) the working of any manufacturing process or invention or any
other methods, formulae, technical data and know-how used by
or which relate to the business of the Employer or any EM
Group Company;
(ii) lists of customers and potential customers or of suppliers and
potential suppliers to the Employer and any EM Group Company
and any other information collected by the Company and any EM
Group Company in relation to those customers or suppliers;
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(iii) the dealings or transactions or other business affairs of the
Employer or any EM Group Company and its or their finances or
management accounts.
The restriction shall cease to apply to information or knowledge which may
(otherwise than by reason of the default of the Executive ) become available to
the public generally without requiring a significant expenditure of labour,
skill or money.
20. INTELLECTUAL PROPERTY
20.1. The Executive shall forthwith communicate to the Employer in
confidence all intellectual property which the Executive may make or
originate either solely or jointly with another or others during the
Employment (hereinafter referred to as "Intellectual Property").
20.2. In the case of such Intellectual Property as is made or originated
hereunder wholly or substantially in the course of his normal duties
or in the course of duties specifically assigned to him and which
relate to the affairs of the Employer or any EM Group Company the
following subclauses of this clause shall apply.
20.3. Such Intellectual Property (or in the case of the Intellectual
Property made or originated by the Executive jointly with another or
others to the full extent of the Executive's interest therein so far
as the law allows) shall be and become the exclusive property of the
Employer and shall not be disclosed to any other person, firm or
company without the consent of the Employer being previously
obtained which if given may be subject to conditions. The provisions
of this subclause shall not entitle the Executive to any
compensation beyond the salary hereinafter mentioned except that in
the case of any invention on which a British Patent has been granted
or assigned to the Employer and the Employer has derived outstanding
benefit from such patent, the Executive may be entitled by virtue of
s 40 of the Patents Act 1977.
20.4. The Executive shall if and when required by the Employer and at the
expense of the Employer do and/or combine with others in doing all
acts and sign and execute all applications and other documents
(including Powers of Attorney in favour of nominees of the Company)
necessary or incidental to obtaining, maintaining or extending
patent or other forms of protection for such Intellectual Property
in the UK and in any other part of the world or for transferring to
or vesting in the Employer or its nominees the Executive's entire
right, title and interest to and in such Intellectual Property or to
and in any application, patent or other form of protection to
copyright as the case may be including the right to file
applications in the name of the Company or its nominees for patent
or other forms of protection or for registration of copyright in any
country claiming priority from the date of filing of any application
or other date from which priority may run in any other country.
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20.5. The provisions of this clause shall remain in full force and effect
notwithstanding that after the Executive has made or originated any
such Intellectual Property the Employment may have ceased or been
determined for any reason whatsoever with the intention that the
same shall bind the heirs of an/or assigns of the Executive.
21. COPYRIGHT
The Executive shall promptly disclose to the Employer all works in which
copyright or design rights may exist which the Executive may make or originate
either solely or jointly with others during the Employment. Any such copyright
works or designs created by him in the normal course of his Employment or in the
course of carrying out duties specifically assigned to him which relate to the
affairs of the Employer shall be the property of the Employer whether or not the
work was made by direction of the Company or was intended for the Employer and
the copyright in it and the rights in any design shall belong to the Employer
and to the extent that such copyright or design rights are not otherwise vested
in the Employer the Executive hereby assigns the same to the Employer.
22. POST-TERMINATION OBLIGATIONS
22.1. The Executive shall not during the period of 2 years after
termination of the Employment solicit or endeavour to entice away
from or discourage from being employed by the Company or any EM
Group Company any employee or director employed by the Company or
any EM Group Company and who to his knowledge was an employee
thereof at the date of such termination or whom to his knowledge has
at that date agreed to be engaged as an employee of the Company or
any EM Group Company and with whom the Executive has dealt or had
contact in the normal course of his duties.
22.2. The Executive shall not for a period of 6 months after the
termination of the Employment (without the previous consent in
writing of the Company) and whether on his own account or for any
other person, firm or company directly in connection with any
business similar to or in competition with the business of the
Company solicit or endeavour to entice away from the Company any
person, firm or company (a) who or which in the twelve (12) months
prior to the end of his Employment shall have been a customer of or
in the habit of dealing with the Company and (b) with whom or which
the Executive had personal dealings in the course of his employment
in the twelve (12) months prior to the end of his Employment.
22.3. The Executive shall not for a period of 6 months after the
termination of his Employment (without the previous consent in
writing of the Company) and whether on his own account or for any
other person, firm or company directly or indirectly in connection
with any business similar to or in competition with the business of
the Company do any business with, accept orders from, or have any
business dealings with any person, firm or company (a) who or which
in the twelve (12) months prior to the end of his Employment was a
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customer of the Company and (b) with whom or which the Executive had
personal dealings in the course of his Employment in the twelve (12)
months prior to the end of his Employment.
22.4. The Executive shall not for a period of 6 months after the
termination of his Employment and within the United Kingdom (without
the previous consent in writing of the Company) directly or
indirectly be engaged concerned or interested (whether as principal,
servant, agent, consultant or otherwise) in any trade or business
which is in competition with any trade or business being carried on
by the Company at the end of the Employment or during a period of
twelve (12) months prior to the end of his Employment and with which
the Executive was concerned in the course of his Employment,
provided always that during such 6 month period the Employer will
pay the Executive a further 6 month salary and bonus even though his
Employment has been terminated but only in circumstances where no
summary termination has occurred in accordance with Clause 22 of
this Agreement and the Executive is not in breach of the covenants
contained in Clause 20. Bonuses will be calculated by dividing the
previous 12 months bonus total by 12.
22.5. The Executive shall not at any time after the Termination Date
represent himself as being employed by or connected with the
Employer or any EM Group Company.
22.6. The Executive acknowledges:
(i) that each of the foregoing subclauses of this clause
constitutes an entirely separate and independent restriction
on him; and
(ii) while at the date of this Agreement the duration, extent and
application of each of the restrictions are considered by the
parties no greater than is necessary for the protection of the
interests of the Employer and any EM Group Company and
reasonable in all the circumstances it is acknowledged that
restrictions of such a nature may become invalid because of
changing circumstances and accordingly if any of the
restrictions shall be adjudged to be void or ineffective for
whatever reason but would be adjudged to be valid and
effective if part of the wording thereof were deleted or the
periods thereof reduced or the area thereof reduced in scope
they shall apply with such modifications as may be necessary
to make them valid and effective.
23. DELIVERY OF DOCUMENTS AND PROPERTY
The Executive shall upon request at any time and in any event upon the
termination of the Executive's Employment immediately deliver up to the Employer
or its authorized representative all keys, security passes, credit cards, plans,
statistics, documents, records, papers, magnetic disks, tapes or other software
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storage media and all property of whatsoever nature which may be in his
possession or control or relate in any way to the business affairs of the
Company or any EM Group Company and the Executive shall not, without the written
consent of the Company, retain any copies thereof.
24. REMEDIES
It is expressly agreed by the Executive and the Employer that the provisions of
clauses 17, 18, 19, 20 and 21 are reasonable for purposes of preserving for the
Employer its business, goodwill and proprietary information. In the event any
breach of the aforementioned provisions by the Executive, the parties recognize
and acknowledge that a remedy at law will be inadequate and the Company may
suffer irreparable injury. The Executive acknowledges that the services to be
rendered by him are of a character giving them peculiar value, the loss of which
cannot be adequately compensated for in damages; accordingly the Executive
consents to injunctive and other appropriate equitable relief upon the
institution of proceedings therefor by the Employer in order to protect the
Employer's rights. Such relief shall be in addition to any other relief to which
the Employer may be entitled at law or in equity.
25. SUMMARY TERMINATION
In any of the following cases the Employer may terminate the Executive's
Employment by written notice taking effect on the date of its service in which
case the Executive shall not be entitled to any further payment from the
Employer except such sums as shall then have accrued due;
(i) if the Executive shall be guilty of any gross misconduct or
any repeated breach of any of the terms of this Agreement;
(ii) if the Executive shall be convicted of a criminal offense
(except for a road traffic offense or an offense not involving
a custodial sentence);
(iii) if the Executive be adjudged bankrupt or makes any composition
or enters into any deed of arrangement with his creditors;
(iv) if the Executive is prohibited by law from being or acting as
a director;
(v) if the Executive shall become of unsound mind or become a
patient under the Mental Health Act 1983;
(vi) if the Executive resigns as a director of the Company
otherwise than at the request of the Company
26. NO RIGHT TO WORK
26.1. The Employer shall be under no obligation to provide any work for
the Executive during any period of notice either given by the
Company or the Executive to terminate the Executive's Employment
under this Agreement. The Company may at any time during the said
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period suspend the Executive from his Employment or exclude him from
any premises of the Employer. Provided that during such period the
Executive shall continue to receive salary and all other contractual
benefits.
26.2. If the Contract is terminated by notice in accordance with Clause 4
then the period referred to in Clause 20.1 to 20.4 shall start to
run from the date of such notice. This proviso will not apply should
the Contract be terminated in accordance with Clause 23.
27. SHORT NOTICE
If the Executive shall at any time become or be unable properly to perform his
duties hereunder by reason of ill health accident or otherwise for a period or
periods aggregating at least one hundred eighty (180) days in any period of
twelve (12) consecutive calendar months the Company may by not less than three
(3) month's notice in writing determine this Agreement.
28. RESIGNATION OF OFFICE
Upon the termination of the Employment the Executive shall at any time or from
time to time thereafter upon the request of the Company resign without claim for
compensation from all offices held by him in the Company and any EM Group
Company and should he fail to do so the Company is hereby irrevocably authorized
to appoint some person in his name and on his behalf to sign and execute all
documents or things necessary or requisite to give effect thereto.
29. RETIREMENT
The Employment shall automatically terminate on the Executive reaching his 65th
birthday.
30. PRIOR RIGHTS
The termination of the Employment shall be without prejudice to any right that
the Company may have in respect of any breach by the Executive of any of the
provisions of this Agreement which may have occurred prior to such
determination.
31. NOTICES
Any notice given under this Agreement shall be deemed to have been duly given if
dispatched by either party hereto by registered post addressed to the other
party in the case of the Company to its registered office for the time being and
in the case of the Executive to his last known address and such notice shall be
deemed to have been given on the day on which in the ordinary course of post it
would be delivered.
32. PRIOR AGREEMENTS
This Agreement is in substitution for all previous contracts of employment
express or implied between the Company or EM Group Company and the Executive
which shall be deemed to have been terminated by mutual consent as from the
Commencement Date.
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33. DISCIPLINARY AND GRIEVANCE PROCEDURE
There are no fixed rules for the resolution of grievance or disciplinary
problems. In the event of the Executive being dissatisfied with any decision
taken against him, or have any grievance relating to the Employment, he should
apply in the first instance to the Chairman of the Board who will either propose
a solution or refer the matter to the Board for a final decision.
34. RECONSTRUCTION OR AMALGAMATION
If before the termination of this Agreement the Employment shall be determined
by reason of the liquidation of the Company for the purposes of reconstruction
or amalgamation and the Executive shall be offered employment with any concern
or undertaking resulting from such reconstruction or amalgamation on terms and
conditions no less favorable than the terms of this Agreement then the Executive
shall have no claim against the Company in respect of the determination of the
Employment.
35. EMPLOYMENT RIGHTS ACT 1996
Schedule 2 to this Agreement sets out the particulars of employment not
contained in the Agreement that must be given to the Executive in accordance
with the terms of the said Employment Right Act 1996.
36. Jurisdiction and Law
This contract shall be construed according to English law whose Courts shall
have non-exclusive jurisdictions.
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SCHEDULE 1
TABLE OF SALARY INCREASES
Date of
Current Increase commencement New salary Signed
salary of new salary
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SCHEDULE 2
EMPLOYMENT RIGHTS ACT 1996
The following information is given to supplement the information given in the
Agreement in order to comply with the requirements of section 1 of the
Employment Rights Act of 1996.
1. The Executive's job title is Managing Director of the Asian subsidiary and
Director of the Company or any EM Group Company on the terms set out in
this Agreement
2. The Executive's continuous period of employment with the Company commenced
on the date hereof and is not continuous with any previous period of
employment with any other Company.
3. There are no collective agreements in force which affect the terms and
conditions of the Executive's employment.
4. There is no Pension Provision applicable to the employment.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as a Deed the
day and year first above written.
Signed by Laurence Gilbert ) /s/ Laurence Gilbert
for and on behalf of the )
Company )
Signed by the Executive ) /s/ Michael Gesner
)
)
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