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EXHIBIT 4.5
MANAGEMENT SERVICES AGREEMENT
MADE THIS 1ST DAY OF SEPTEMBER 2000
PARTIES:
1. ELITE LOGISTICS, INC. AND SUBSIDIARIES (ELITE), AND;
2. THIEN K NGUYEN (MANAGER) (LOCATED IN FREEPORT, TEXAS OR OTHER LOCATION)
BACKGROUND:
1. ELITE wishes to retain the services of MANAGER to provide management
services in accordance with the Position Specification attached hereto.
2. MANAGER agrees to render such services to ELITE subject to the terms and
conditions of this Agreement.
3. The mission of ELITE as outlined in its business plan is as follows: "Elite
will harness the power of wireless communications and global positioning
technology to improve the security of life and property and the efficiency
of our clients' business by providing best of breed monitoring, tracking and
information systems for motor vehicles and other mobile and fixed assets."
4. Pursuant to this Management Services Agreement MANAGER will assist ELITE
to fulfill its business plan and accomplish its mission.
DECLARATION
I, MANAGER declare that I have read and fully understand the conditions of
employment detailed in the attached Management Services Agreement and accept
them fully.
SIGNED BY MANAGER SIGNED FOR AND ON BEHALF OF
ELITE LOGISTICS, INC.
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By:
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Title: President
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Witness: Witness:
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Full Name Full Name
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Address Address
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Occupation Occupation
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1 DEFINITIONS:
ELITE GROUP Means ELITE Logistics Services, Inc. and
all subsidiary and affiliate companies in
which ELITE may have an equity interest
from time to time.
THE BOARD Means the Board of Directors of ELITE.
THE BUSINESS PLAN Means the plan for the operation of
ELITE's business as approved by the Board
and amended by the Board from time to
time.
CONFIDENTIAL INFORMATION Means all information that is
confidential to and the property of ELITE
and the ELITE Group whether in written,
electronic or other form or retained in
the mind of the MANAGER. Without limiting
the generality of the forgoing, it
includes all and any information relating
to the business, business plans, affairs,
policies, processes, intellectual
property (including without limitation
software products, source codes, designs,
specifications, drawings, technical
information, know how, trade secrets,
technical and scientific research,
copyright, patents and patent
applications), documents, costing,
pricing methods, operations, finances,
strategic relationships, customers,
product knowledge, quality standards,
devices, market research, past and
present legal or regulatory matters and
all such similar information of ELITE and
the ELITE Group.
DOCUMENTS Means all memoranda, notes,
specifications, manuals, drawings, plans,
design reports, records and other
material stored in written, audio, visual
or electronic or whatsoever form
INTELLECTUAL PROPERTY Means the right to use, copy, modify,
market, or license any software concept,
design, source code, or documentation. It
also includes all rights to any brand,
patent, copyright, registered design,
trademark, distinguishing logos, trade
secret or any other intellectual property
right belonging to ELITE or Elite Group
including any software, systems or
products discovered by MANAGER or by
ELITE. It also includes such other
Industrial, Intellectual and Contractual
Property as may further establish or
reinforce the ELITE Group rights in the
ELITE software, systems and products.
MANAGEMENT SERVICES AGREEMENT Means this agreement between the parties
and any amendments thereto.
REQUIRED NOTICE OF TERMINATION Means the minimum period for notice of
termination set out in Schedule A.
REVIEW DATE Means the date for annual salary review
as set out in Schedule A.
TERRITORY Means the territories as set out in
Schedule A.
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2. COMMENCEMENT DATE
2.1 This Agreement shall commence on the commencement date specified in
Schedule A.
3. MANAGER'S DUTIES
3.1 MANAGER shall perform the duties set out in the Position Specification
contained in Schedule B diligently and competently and in a
professional manner to the best of MANAGER'S ability for the benefit of
ELITE. The Chief Executive Officer or designated representative may
from time to time at their sole discretion as they deem appropriate
assign to MANAGER such other responsibilities and duties.
3.2 MANAGER shall work full-time (a minimum 40 hours per week) for ELITE.
MANAGER may act as a non-executive director or advisor for other
companies provided that MANAGER advises Elite of such other activities
and they do not, in the opinion of ELITE impair MANAGER'S ability to
fulfill this Agreement.
3.2 MANAGER shall prepare such business plans, forecasts, activity reports,
financial reports, and management reports as the Chief Executive
Officer or designated representative may request. MANAGER shall inform
the Chief Executive Officer or designated representative of important
developments including without limitation:
o Information about competitors, their products and prices.
o Comments on ELITE' products from actual and prospective customers.
o Opportunities for further product development or for new products.
o Any other market intelligence.
3.3 MANAGER acknowledges receipt of a copy of the Employee Handbook/Company
Policy Manual and has read understood and agreed to the same. MANAGER
agrees to abide by company policy and such other reasonable limitations
upon his scope of authority as may be established from time to time by
the Chief Executive Officer or designated representative.
3.4 MANAGER shall comply with all the applicable laws and regulations
in the territory in performing his duties for ELITE.
4. SALARY AND SALARY REVIEWS
4.1 MANAGER shall receive the compensation package including the salary and
performance related cash bonuses detailed in Schedule A in the manner
detailed. Salary including cash bonuses shall be reviewed annually on
the Review Date.
5. GENERAL CONDITIONS
5.1 The general conditions of employment shall be as set out in the
Employee Handbook (copy attached at Schedule C) and as amended from
time to time, in Elite's sole discretion.
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6. EXPENSES.
6.1 ELITE shall reimburse MANAGER for reasonable business expenses
necessarily incurred in the performance of his duties in accordance
with ELITE travel and expenses policies and procedures that are in
effect at the time the expenses are incurred.
6.2 If ELITE provides MANAGER with a corporate credit card, MANAGER is
responsible for any personal charges incurred on the company credit
card and without limitation to any other remedy which may be available
to ELITE hereby grants to ELITE the right to offset such charges
against any and all amounts which may be due to MANAGER from ELITE.
MANAGER shall return such credit card to ELITE immediately upon request
by ELITE and in any event upon termination of this Agreement for
whatever reason.
6.3 If ELITE provides MANAGER with a corporate phone card, MANAGER is
responsible for any personal charges incurred on the company phone card
and without limitation to any other remedy which may be available to
ELITE hereby grants to ELITE the right to offset such charges against
any and all amounts which may be due to MANAGER from ELITE. MANAGER
shall return such phone card to ELITE and desist from using such
service immediately upon request by ELITE and in any event upon
termination of this Agreement for whatever reason.
7. CONFIDENTIAL INFORMATION
7.1 Elite promises to provide MANAGER and MANAGER acknowledges, that by
virtue of MANAGER'S employment with ELITE, MANAGER will gain knowledge
of Confidential Information. MANAGER agrees and acknowledges that all
such Confidential Information is the sole and exclusive property of
ELITE. MANAGER covenants that the Confidential Information, and any
other information obtained by MANAGER in relation to the ELITE Group
shall during the currency of MANAGER'S employment and at all times
thereafter, be kept secret and confidential and except to the extent
that any such Confidential Information or other information shall be
part of the public domain (other than as a result of the breach by the
MANAGER of this Clause) such information shall not be disclosed other
than as required by law.
7.2 MANAGER will not disclose Confidential Information to such parties
within ELITE who MANAGER should reasonably expect to be excluded from
receiving such Confidential Information.
7.3 MANAGER further agrees to promptly deliver to ELITE upon termination of
this Agreement, or at any time that ELITE may so request, all software,
media memoranda, notes, records and other documents comprising
Confidential Information that he then possesses or has under his
control.
7.4 The MANAGER shall not during the term of this Agreement or subsequently
directly or indirectly divulge to any person other than MANAGER'S
professional advisor(s) any of the terms of this Agreement.
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8. PROTECTION OF INTELLECTUAL PROPERTY
8.1 MANAGER acknowledges that all ELITE Group software, systems, products
and processes are proprietary to the ELITE Group by virtue of their
unique design.
8.2 MANAGER shall have no rights in respect of any Intellectual Property of
the ELITE Group, or the goodwill associated therewith and MANAGER
acknowledges that all such rights are vested in the ELITE Group.
8.3 MANAGER shall not during the term of this Agreement or for a period of
two years thereafter aid, abet or assist, either directly or
indirectly, anyone else in replicating, creating, manufacturing,
marketing, licensing, or in any other way dealing in systems and
products infringing the ELITE Group's Intellectual Property.
8.4 MANAGER shall comply with all directives of the Board and take all
other reasonable steps to prevent infringement by third parties of the
Intellectual Property of the ELITE Group.
8.5 MANAGER shall promptly notify the Board of Directors in the event that
he becomes aware of any infringement by third parties of the ELITE
Group's Intellectual Property.
8.6 MANAGER further agrees to promptly deliver to ELITE on termination of
this Management Services Agreement, or at any time that ELITE may so
request, all memoranda, notes, records and other documents comprising
or relating to the Intellectual Property that MANAGER then possesses or
has under MANAGER'S control.
9. COVENANTS NOT TO COMPETE
9.1 MANAGER agrees that the services he has to perform under this Agreement
are of a special, unique, unusual, extraordinary and intellectual in
character.
9.2 MANAGER acknowledges that ELITE would sustain considerable injury were
MANAGER to take the knowledge, skills, business contacts and
information (whether confidential or otherwise) acquired during
MANAGER'S service with ELITE and use them to compete with ELITE.
9.3 In order to protect Elite's interests in its Confidential Information
and Intellectual Property, MANAGER covenants that during the term of
this Agreement and for a period of one year after termination for any
reason, neither MANAGER, nor any corporation, partnership or joint
venture of which MANAGER is a member, will without the prior written
consent of ELITE, either directly or indirectly, and whether as
principal, agent, trustee, financier, shareholder, debenture holder,
director, consultant, partner, advisor, or otherwise in the Territory:
a) Compete with the Business of ELITE as carried on by ELITE
until the date of termination.
b) Be concerned in any corporation or business that is or may be
engaged or concerned in or does or may carry on business that
competes with the Business of ELITE as carried on by ELITE
until the date of termination. MANAGER may hold or make
investments in Companies whose business does not directly
compete with the Business at the time of making such
investment, but shall immediately disclose such investments
should their business subsequently become competitive.
c) Solicit or entice away from ELITE by any means whatsoever (or
endeavor to do so) any business from any person who is or was
a customer of ELITE within the six month period prior to
termination of this Agreement.
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d) Employ, offer or procure the offer of employment, or solicit
or entice away from ELITE, or induce to breach his/her
Agreement of service with ELITE (or endeavor to do so) any
person who was employed by ELITE or who was an officer or
agent of ELITE, or a Contractor to ELITE at the date of
termination or was employed by ELITE in any such capacity at
any time during the six month period prior to termination.
9.4 MANAGER will not at any time after termination of this agreement
represent himself as being in any way connected with or interested in
the Business or affairs of ELITE.
9.5 The provisions of this Clause 9 shall bind and enure for the benefit of
the Parties after the termination of this Agreement.
9.6 MANAGER acknowledges that this covenant not to compete is not
unreasonably restrictive nor will it interfere with his ability to earn
his livelihood for among other things the following reasons:
o It covers only those services and products of the type marketed by
the ELITE Group. The market for such systems and products is very
small relative to the total software market.
o Inconvenience of this covenant not to compete upon MANAGER is
minimal in comparison with the hardship that the ELITE Group would
potentially sustain without it.
o The experience and skills that MANAGER acquires in the course of
his employment with ELITE are readily transferable to other
non-competing management opportunities on termination of his
Agreement with ELITE.
9.7 Each of the undertakings of MANAGER contained in Clause 9.3 shall be
read and construed independently of the other undertakings so that if
one or more should be held to be invalid as an unreasonable restraint
of trade or for any other reason whatever then the remaining
undertakings shall be valid to the extent that they are not held to be
so invalid.
9.8 While the undertakings of MANAGER contained in Clause 9.3 and 9.4 are
considered by the Parties to be reasonable in all the circumstances, if
one or more of such undertakings should be held to be invalid as an
unreasonable restraint of trade or for any other reason whatsoever, but
would have been held valid if part of the wording thereof had been
deleted or the period thereof reduced or the range of activities or
area dealt with thereby reduced in scope, the said undertakings shall
apply with such modifications as may be necessary to make them valid
and binding upon the MANAGER. Any such modifications shall be kept to a
minimum.
9.9 As further consideration for entering into the restrictive covenants
contained in this Agreement MANAGER shall receive the incentive bonus
and/or stock option grants as set out in Schedule A.
10. INTELLECTUAL PROPERTY ASSIGNMENT
10.1 MANAGER agrees that all software, inventions, processes, products,
designs or procedures relating to the Business of ELITE which MANAGER
may develop or participate in the development of during the term of
this Agreement (hereinafter collectively referred to as "MANAGER'S
Intellectual Property") whether during normal working hours or not
shall be deemed to be the property of ELITE or its assignee.
10.2 MANAGER agrees to assign his rights if any to MANAGER'S Intellectual
Property, developed while employed by ELITE, to ELITE and further to
sign any documents reasonably required by ELITE in order to protect
ELITE' interest in the MANAGER'S Intellectual Property.
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11. TERM
11.1 The initial term of this Agreement is set out in Schedule A. Thereafter
it may be renewed by mutual agreement until terminated by either party
giving the other party the Required Notice of Termination.
11.2 ELITE may terminate this Agreement forthwith for cause if:
o MANAGER is guilty of gross dereliction of duty, incompetence or a
major breach of this Agreement
o MANAGER commits any illegal, dishonest or fraudulent act against the
company or is indicted, convicted or pleads nolo contendere to any
felony or any act of moral turpitude
o MANAGER is guilty of the use or possession of illegal drugs, or the
excessive use of alcohol, or commits any other act that brings
ELITE into disrepute.
o MANAGER dies, or is incapable of performing MANAGER'S obligations,
in the normal manner, on account of disability for ten consecutive
weeks, or in the aggregate fifteen weeks, of any year. If this
Agreement is terminated for cause pursuant to this sub-clause (iv),
MANAGER or his heirs and assigns as the case may be, shall
immediately vest in all options allocated to MANAGER up to and
including the end of the calendar year of such death or disability.
o Any other termination shall be deemed to be without cause.
11.3 ELITE shall have the right to terminate this Agreement without cause
upon written notice to MANAGER. If ELITE terminates this Agreement
without cause, ELITE shall continue to pay the salary portion of
MANAGER'S compensation as it becomes due and continue benefits for a
period of one month from the effective date of termination of this
Agreement.
11.4 The Termination of this Agreement shall be without prejudice to the
rights of the parties that accrued up to the date of termination.
Termination shall not affect those clauses herein, which by their
nature the parties intend to survive termination.
12. REPRESENTATIONS AND WARRANTIES
12.1 The parties represent the warrant to each other:
o Each is free to enter into this Management Services Agreement
o Each possesses the legal authority to enter into this Management
Services Agreement
o There are no outstanding Contractual commitments that will prevent
or restrict any of them from entering into this Agreement and
performing the obligations hereunder.
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13. GOVERNING LAW
13.1 The laws of Texas and controlling Federal Law shall govern this
Management Services Agreement and any action hereunder shall subject to
the jurisdiction of the federal and state courts sitting in Brazoria
County, Texas.
14. ENTIRE AGREEMENT
14.1 This Agreement represents the entire agreement between the parties with
respect to the subject thereof as such it supersedes and replaces any
prior arrangements between the parties either oral or written.
14.2 Any changes or modifications to this Agreement shall be valid only if
made in writing and signed by both parties.
15. SEVERABILITY
15.1 Each provision in this Management Services Agreement is severable
wholly and in part and if any provision is said to be illegal or
unenforceable for any reason only the illegal or unenforceable portion
shall be ineffective and the remainder shall remain in full force and
effect.
16. AMENDMENT
16.1 Any purported amendment or variation of this Agreement must be in
writing and be signed by both Parties.
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SCHEDULE A
COMPENSATION, TERMS AND CONDITIONS
NAME Thien K Nguyen
POSITION MANAGER, CHIEF TECHNICAL OFFICER
EMPLOYMENT DATE 8-6-1997
GRANT OPTION DATE September 1, 2000
INITIAL TERM One Year
REVIEW DATE 1 January each year.
TERRITORY United States of America
REQUIRED NOTICE OF Thirty (30) days notice in writing
TERMINATION (unless terminated for cause)
COMPENSATION
1. ANNUAL COMPENSATION
MANAGER shall receive the following salary:
SALARY: Base Salary (payable biweekly) $108,000 per annum
TOTAL ON TARGET REMUNERATION $108,000.00
PERFORMANCE BONUS As determined by the Board of Directors
2. INCENTIVE OPTIONS
In addition to the Annual Compensation detailed herein, MANAGER shall receive
stock option allocations giving the employee the right to purchase stock in the
company at current Fair Market Value (FMV) in accordance with the Elite
Logistics Inc., 2000 Employee Incentive Plan.
Exercise Vesting Vesting Option
Allotment Price Period Date Grant Date
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000 Shares FMV 3 years January 1, 2000 September 1, 2000
000 Shares FMV 3 years January 1, 2001 January 1, 2001
000 Shares FMV 3 years January 1, 2002 January 1, 2002
Vesting: In respect of each option grant 1/3 of the options vest on completion
of one year's service (on the anniversary of the date of employment) and
thereafter 1/24th of the remaining balance vests at the end of each subsequent
month of completed service.
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3. STOCK PURCHASE RIGHTS
MANAGER shall on the execution of this agreement receive in addition to the
incentive stock options detailed above restricted stock purchase rights pursuant
to the 2000 Equity Incentive Plan as follows:
Allotment Grant Date Exercise Price Expiration Date
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000 September 1, 2000 $3.00 December 29, 2000
These shares shall be subject to execution of a restricted stock purchase
agreement and be restricted for a period of 12 months from the date of such
investment. Elite agrees to loan MANAGER the funds necessary to purchase these
shares at an interest rate two (2) points above National Prime Rate at the time
of purchase.
4. PAID VACATION / DOMESTIC LEAVE MANAGER
shall, be entitled to 15 days paid annual vacation /domestic leave to be taken
in accordance with company policy.
5. LEAVE OF ABSENCE, BEREAVEMENT LEAVE ETC MANAGER
shall be entitled to leave of absence and compensation in accordance with
company policy as set out in the Employee Handbook during periods of sickness,
disability, or bereavement.
6. HEALTH INSURANCE MANAGER and MANAGER's
dependents will be eligible for participation in the company's group health
insurance Plan and other employee benefits, on the first of the month following
90 days of employment.
7. RELOCATION EXPENSES
If relocation is required by ELITE then ELITE shall reimburse MANAGER's
reasonable costs of relocating to Freeport, Texas in accordance with ELITE
relocation policy as set our in the Employee Handbook.
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SCHEDULE B
POSITION SPECIFICATION
NAME: Thien K Nguyen
POSITION: Manager, Chief Technical Officer
REPORTING TO: Chief Executive Officer or designated representative
AREAS OF RESPONSIBILITY PERFORMANCE CRITERIA
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SUMMARY EDUCATION AND/OR EXPERIENCE
Directs and coordinates research and development
activities for organizational products, services, or LANGUAGE SKILLS
ideologies by performing the following duties personally
or through subordinate supervisors. MATHEMATICAL SKILLS
ESSENTIAL DUTIES AND RESPONSIBILITIES include the REASONING ABILITY
following. Other duties may be assigned.
CERTIFICATES, LICENSES, REGISTRATIONS
Plans and formulates aspects of research and development PHYSICAL DEMANDS The physical demands described here
proposals such as objective or purpose of project, are representative of those that must be met by an
applications that can be utilized from findings, costs employee to successfully perform the essential
of project, and equipment and human resource functions of this job. Reasonable accommodations may
requirements. be made to enable individuals with disabilities to
perform the essential functions.
Reviews and analyzes proposals submitted to determine if
benefits derived and possible applications justify WORK ENVIRONMENT The work environment characteristics
expenditures. described here are representative of those an employee
encounters while performing the essential functions of
Approves and submits proposals considered feasible to this job. Reasonable accommodations may be made to
management for consideration and allocation of funds enable individuals with disabilities to perform the
or allocates funds from department budget. essential functions.
Develops and implements methods and procedures for
monitoring projects such as preparation of records of
expenditures and research findings, progress reports,
and staff conferences, in order to inform management of
current status of each project.
Negotiates contracts with consulting firms to
perform research studies.
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SUPERVISORY RESPONSIBILITIES
QUALIFICATIONS To perform this job successfully, an
individual must be able to perform each essential duty
satisfactorily. The requirements listed below are
representative of the knowledge, skill, and/or ability
required. Reasonable accommodations may be made to
enable individuals with disabilities to perform the
essential functions.
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SCHEDULE C
GENERAL TERMS AND CONDITIONS
VACATION/DOMESTIC/PERSONAL Annual leave is provided in
accordance with Schedule A. All
applications for annual leave shall
be made on the leave application
form and shall require a minimum of
two weeks notice.
MANAGER is entitled to up to five
days leave on ordinary pay where
MANAGER finds that it is essential
to stay at home in an emergency in
the event of illness of a husband
or wife, dependent child or
dependent parent. Such leave shall
be treated as though it were due to
MANAGER's own sickness and shall be
subject to the following
conditions:
o leave shall be set-off against
MANAGER's sick leave
entitlement
o On return to work MANAGER shall
complete a sick leave
notification and file with the
human resources manager.
o If requested, a medical
certificate shall be provided
to support such leave
entitlement.
BEREAVEMENT LEAVE MANAGER is entitled to 3 days
bereavement leave in each year on
the death of the MANAGER's spouse,
child, parent, brother or sister,
grandparent, mother in law or
father in law. The entitlement will
not form part of any benefit
payable upon termination of the
Management Services Agreement.
MANAGER shall complete a
Bereavement Leave Application and
file with the human resources
manager.
DRESS CODE MANAGER is expected to comply with "ELITE"
dress code as published in the
Employee Handbook from time to
time.
HOURS OF WORK MANAGER is expected to work a
minimum of 40 hours in any week.
These will normally be worked
Monday to Friday at any time
between 7:00 a.m. and 6:00 p.m. to
suit the MANAGER.
NOTICE PERIOD FOR TERMINATION OF Unless terminated by Elite for
EMPLOYMENT cause, either party may terminate
the Management Services Agreement
by giving the other party thirty
(30) days notice in writing.
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PAYMENT ON TERMINATION OF On termination of employment under
EMPLOYMENT this Agreement, MANAGER will be
paid
o Salary to date of termination
o Accrued annual leave
o One months salary in lieu of
notice if ELITE does not wish
MANAGER to work out the notice
period (unless termination is
for cause).
o Any and all bonuses and
commissions accrued to the date
of termination.
Unused sick leave is not payable on
termination of employment.
SICK LEAVE After three months of service
MANAGER is entitled to accrued sick
leave to be taken in accordance
with company policy.
PUBLIC HOLIDAYS Public holidays shall be
taken in accordance with company
policy.
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