EXHIBIT 10.44
DATED 26TH JULY 2000
(1) IDEAL HARDWARE LIMITED
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(2) IAN MICHAEL FRENCH
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SERVICE AGREEMENT
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Wedlake Bell
16 Bedford Street
Covent Garden
London WC2E 9HF
DX: 40009 Covent Garden
Tel: 020 7395 3000
Fax: 020 7836 9966
Ref: DEI/99007/WB2-90089
THIS AGREEMENT is made on 2000
BETWEEN:-
(1) IDEAL HARDWARE LIMITED whose registered office is at Cox Lane,
Chessington, Surrey, KT9 1SJ (Registered in England Number 3969946)
("the Company"); and
(2) IAN MICHAEL FRENCH of 10 Davenant Road, Oxford, Oxfordshire 0X2 8BX
("the Executive").
WHEREBY it is agreed that the Company shall employ the Executive upon and
subject to the following terms and conditions:-
1. INTERPRETATION
(1) In this Agreement the following words and expressions shall have, unless the
context otherwise requires, the meanings respectively ascribed to them:-
"Associated Company":
any company which is a holding company or a subsidiary of the Company or a
subsidiary of any holding company;
"Board":
the board of directors from time to time of the Company or any Associated
Company including any duly appointed committee or sub-committee thereof;
"Group":
the Company and the Associated Companies from time to time;
"Intellectual Property":
copyright, rights in the nature of copyright, patents, utility models, design
right, registered designs, trade marks, service marks, logos, trading and
business names, know how, confidential processes and information, inventions,
discoveries and improvements, other intellectual property rights and rights in
the nature of intellectual property (in each case whether registered or not and
including both registrations and applications therefor) and all rights or forms
of protection of a similar nature or
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having equivalent or similar effect in any part of the world;
"Records":
notes, memoranda, tape recordings, films, photographs, plans, drawings, computer
data, software or any form of record (whether electronic or otherwise) relating
to any matter within the scope of the business, finances, management or
administration of the Company or any Associated Company or any of their clients,
customers, shareholders, employees, offices, suppliers, distributors and agents
or concerning any of its or their dealings, transactions or affairs or any of
their clients, customers, shareholders, employees, offices, suppliers,
distributors and agents; and
"subsidiary" and "holding company":
have the meanings attributed to them by sections 736 and 736A of the Companies
Act 1985 provided that the term "subsidiary" shall also include a subsidiary
undertaking (as defined in section 258 of the Companies Act 1985).
(2) Any reference in this Agreement to the employment of the Executive is a
reference to the Executive's employment by the Company under this Agreement.
(3) This Agreement supersedes all previous agreements and arrangements (if any)
relating to the employment of the Executive (which such agreements and
arrangements (if any) shall be deemed to have been terminated by mutual consent)
and sets out the entire agreement of the parties in relation to the Executive's
employment.
(4) The Interpretation Act 1978 shall apply to this Agreement as it does to an
Act of Parliament.
(5) References in this Agreement to any legislation (national or supranational)
(or any part thereof) shall include references to such legislation (or part
thereof) as amended, consolidated, replaced or re-enacted from time to time.
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(6) The headings in this Agreement (and any descriptive notes in brackets
following references to statutes or other documents) and any front or back sheet
or cover and any index hereto being for convenience only do not form part of
this Agreement and shall not be used as aids to its interpretation.
(7) References in this Agreement to Clauses, sub-clauses, Recitals or Schedules
are to clauses, sub-clauses and recitals of or schedules to this Agreement.
(8) The Schedules (and the Parts, if any, thereof) form part of this Agreement
and have the same full force and effect as if they were expressly set out in
their entirety in the operative part of this Agreement.
(9) Any reference in this Agreement to a person shall (unless the context
otherwise requires) include a reference to a natural person and a body corporate
and to any unincorporated body of persons including any firm, association,
partnership, trust or charity.
(10) Any reference in this Agreement to any "party" or to the "parties" are to
the parties to this Agreement.
(11) Any word in this Agreement which denotes the singular shall where the
context permits include the plural and vice versa and any word in this Agreement
which denotes the masculine gender shall where the context permits include the
feminine and/or the neuter gender and vice versa.
(12) In construing this Agreement the ejusdem generis rule shall not apply and
accordingly the interpretation of general words shall not be restricted by being
preceded or followed by words indicating a particular class of acts, matters,
things or examples.
(13) The words "including" and "in particular" shall be construed as being by
way of illustration or emphasis only and shall not be construed as, nor shall
they take effect as, limiting the generality of any foregoing words.
(14) Save as herein expressly provided, expressions and words which are defined
in the Companies Act 1985 shall have herein the meanings therein given to them.
(15) This Agreement shall be binding upon and enure for the benefit of the
parties' respective successors in title and assigns.
(16) This Agreement is governed by and shall be construed and interpreted in
accordance with the laws of England and each of the parties irrevocably submits
to the exclusive jurisdiction of the English Courts or Tribunals.
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2. APPOINTMENT AND TERM
(1) Subject as hereinafter provided the Executive shall be employed by the
Company unless and until terminated in accordance with Clauses 3(5) or 14 of
this Agreement and shall provide his services as Executive Director or in such
other capacity as the Company may from time to time require.
(2) The Executive's employment began on 4 August 1987 and the Executive's
period of continuous employment for statutory purposes shall be deemed to have
commenced on that date.
(3) The Executive represents to the Company that he is entitled to enter into
this Agreement and to carry out its terms and that by doing so he shall not be
in breach of any obligation (contractual or otherwise) to any third party which
would entitle that third party to damages or any other remedy.
3. OBLIGATIONS DURING EMPLOYMENT
(1) The Executive shall during the continuance of his employment:-
(a) unless prevented by sickness or injury devote the whole of his time,
attention, industry, ability, expertise, skill and ingenuity during
working hours (as described in Clause 5) to his duties under this
Agreement and shall faithfully and using his best endeavours carry out
all work which may be required of him;
(b) comply with all reasonable and lawful requests made by the Board;
(c) use his best endeavours to promote the interests of the Group;
(d) work at the Company's offices at Cox Lane, Chessington, Surrey KT9 1SJ
or at any of the Company's or any Associated Company's other offices in
the United Kingdom as directed from time to time.
(e) travel on Company or Associated Company business in the United Kingdom
or overseas as the Company or Associated Company may from time to time
require which may include travelling outside normal business hours, at
weekends and on bank or public holidays;
(f) at such time as the Company may reasonably request and at the expense
of the Company undergo a medical examination by a doctor of the
Company's
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choice and permit disclosure of the results of such medical examination
to the Company. The Company shall keep the results of such medical
examination confidential save insofar as it is necessary to disclose
the results for the purpose of obtaining or maintaining any policy of
insurance required by the Company or save as required by law; and
(g) report to the Board any matters of concern that come to the Executive's
attention as it is the duty of the Executive to report any acts of
misconduct, dishonesty, breach of Company rules or breach of any of the
rules of any relevant regulatory bodies committed, contemplated or
discussed by any other member of staff or other third party. The
Company shall keep confidential whatever is reported save as required
by law or a court or authority of competent jurisdiction. Failure to
act in accordance with this provision is a disciplinary matter which
may lead to summary dismissal.
(2) Notwithstanding the foregoing or any other provision of this
Agreement:-
(a) the Company shall be entitled during the continuance of the Executive's
employment to make the Executive's services available to any other
person firm or company outside the Group at such locations and for such
periods and on such terms as the Company and the Executive shall
reasonably agree and shall enter into any agreement with such other
person as the Company may reasonably require to give full effect to
such arrangement; and
(b) the Company shall be entitled at any time during the continuance of the
Executive's employment to appoint another person or persons to act
jointly with the Executive in discharging his duties.
(3) The Executive's duties as a director of the Company or any Associated
Company are subject to the Articles of Association of the Company or any
Associated Company for the time being.
(4) The Board may at any time require the Executive to cease temporarily or
otherwise from performing and exercising such duties or powers or any of them
and, during the period of any notice given pursuant to Clause 14(1), the Company
shall be entitled at any time or times to require the Executive to cease to
attend at the premises of the Company or any Associated Company in each case to
such extent and for so long as the Board may from time to time determine during
which period or periods:-
(a) the Executive shall nevertheless remain available to perform any such
duties and/or to exercise any such powers, authorities and discretions
if and when called upon so to do by the Board;
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(b) subject as provided in this Clause 3(5), the remaining provisions of
this Agreement shall continue to remain in full force and effect;
(c) the Executive shall be permitted to seek further employment starting
after the Termination Date; and
(d) the Executive shall be provided with the information and powers
necessary for him to carry on his statutory obligations as a director
pursuant to, without limitation to the generality of the foregoing, the
Companies Act 1985 and the Financial Services Act 1986.
(5) The Executive shall not be entitled to any payment in damages or entitled to
make, bring or base any claim or counter-claim whatsoever upon or as a result of
the exercise by the Company of its rights under Clause 3(5).
4. INTERESTS IN OTHER BUSINESSES
(1) During the course of the Appointment the Executive shall not (unless the
Board shall in its absolute discretion so consent in writing) whether alone or
jointly with others and whether as principal, partner, manager, employee,
contractor, consultant, adviser, director, officer, shareholder, agent or
otherwise howsoever be engaged, concerned or interested in or assume
responsibilities or duties for, whether directly or indirectly, any business
whatsoever (other than any of the businesses of the Group) or any firm, company
(which is not a member of the Group), person, association, charity, trust or
society (whether incorporated or otherwise) save that notwithstanding the
foregoing:-
(a) the Executive may be interested as a holder directly or through
nominees for investment purposes only in any securities which are for
the time being admitted to trading on a recognised stock exchange
provided that none of the holdings of such securities in which the
Executive shall be so interested shall at any time exceed five per cent
in aggregate of the nominal value of the securities concerned for the
time being in issue; and
(b) the Executive (to the extent that and only for so long as the Board
shall at its absolute discretion so consent in writing) may be
concerned or take an interest in or assume responsibilities or duties
to any firm, company, person, association, charity, trust or society
(whether incorporated or otherwise) Provided always that (and without
prejudicing the Board's absolute discretion):-
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(i) the business or activity of such firm, company, person,
association, charity, trust or society is not in conflict and
does not compete and is not likely to conflict or compete with
any business of the Company or any Associated Company; and
(ii) the Executive's concern and interest in and responsibilities
and duties towards such firm, company, person, association,
charity, trust or society do not and are unlikely to interfere
with the proper performance of the Executive's duties under
this Agreement.
5. HOURS OF WORK
The Executive will work the hours necessary or appropriate from time to time to
carry out his duties properly and effectively with no allowance or additional
payment for overtime. The parties believe that for the purposes of the Working
Time Regulations 1998 that the Executive is an autonomous worker (as defined by
Regulation 20), however and without prejudice to this belief the Executive
agrees whenever necessary to work longer than 48 hours per week on average.
6. SALARY AND BONUS
(1) The Company shall pay the Executive during the continuance of his employment
a salary initially at the rate of Pound Sterling 130,000 per annum inclusive of
any Director's fees payable by the Company or any Associated Company which shall
accrue from day to day and shall be payable by twelve equal monthly instalments
in arrears, on or about the last working day of each calendar month by credit
transfer direct to the Executive's bank account.
(2) The Executive's salary shall be subject to a review (but not necessarily an
increase) which shall take place annually on or about the anniversary of the
date of commencement of the Executive's employment under this Agreement. The
Executive's salary may be increased with effect from any such review date at
the absolute discretion of the Board.
(3) The Executive agrees and hereby authorises the Company to deduct from any
wages (as defined in Part II of the Employment Rights Act 1996) due to the
Executive any sums due from the Executive to the Company or any Associated
Company.
(4) In addition to the salary referred to in sub-clause (1) and in accordance
with the provisions of Schedule 2 attached hereto the Executive shall be paid
such bonuses,
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additional remuneration and/or other benefits (if any) as the Board may from
time to time determine in its discretion but so that the Executive shall not be
entitled to any such bonus, additional remuneration and/or other benefits as of
right and so that the Company may at any time discontinue or vary the payment of
any such bonus, additional remuneration and/or other benefits it may in fact
make.
7. EXPENSES
The Company shall during the continuance of the Executive's employment reimburse
the Executive all reasonable travelling, accommodation, entertainment and other
out-of-pocket expenses wholly and necessarily incurred by the Executive in the
proper performance of his duties under this Agreement upon production of
receipts or such appropriate evidence of payment.
8. HOLIDAYS
(1) The Executive shall, in addition to public and bank holidays, (in accordance
with the proper performance of his duties under this Agreement) be entitled to
30 working days paid holiday in each calendar year or such proportion of days as
shall correspond to the actual period that the Executive may have worked for the
Company during the calendar year, to be taken at such times as shall have been
approved by the Board.
(2) The Executive shall be entitled to carry forward a maximum of 5 days accrued
but unused holiday entitlement from one calendar year to the next. Any accrued
but untaken holiday in excess of 5 days shall be forfeited by the Executive.
(3) Upon the termination of the Executive's employment (except in the case of
summary termination for cause when the Executive shall not be entitled to
receive any pay in lieu of accrued holiday) the Executive's entitlement to
accrued holiday pay shall be calculated on a pro rata basis in respect of each
completed month of service in the calendar year in which his employment
terminates so that if the Executive shall have taken more holiday than his
accrued entitlement the Company is hereby authorised (for the purposes of Part
II of the Employment Rights Act 1996) to make an appropriate deduction from the
Executive's final salary payment.
(4) The Company, at its discretion, may request the Executive to take any
outstanding holiday entitlement during any period of notice, and should the
Executive fail to do so, the Executive shall then lose any entitlement to
holiday pay in lieu.
(5) The Company shall be entitled to withhold any entitlement to holiday pay in
lieu if the Executive fails to give the Company proper notice of termination or
if the
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Executive leaves before such notice has expired. In such a case the Executive's
holiday pay in lieu shall be reduced by the number of days notice not worked. In
any case where the Company agrees to waive the requirement for the Executive to
work out his notice, this sub-clause shall not apply.
9. SICKNESS AND INJURY
(1) If at any time the Executive is absent from work due to sickness or injury
he shall promptly forward to the Company, if required, evidence of such sickness
or injury in a form satisfactory to the Board.
(2) The Company shall pay the Executive's salary under sub-clause 6(1) (less an
amount equal to his statutory sick pay) for the first 40 days in aggregate of
absence due to sickness or injury in any calendar year but shall not be required
to pay the Executive any salary and or other remuneration for any further
periods of such absence in any calendar year, although it may at its discretion
do so.
(3) If any incapacity is caused by any alleged action or wrong of a third party
and the Executive decides to claim damages in respect thereof, the Executive
shall use all reasonable endeavours to recover damages for loss of earnings over
the period for which salary has been paid or will be paid to the Executive by
the Company under this Clause 9 and will account to the Company for any such
damages recovered less any costs borne by the Executive in achieving such
recovery in an amount not exceeding the actual salary paid or payable by the
Company under this Clause 9 in respect of such period.
10. CONFIDENTIALITY
(1) The Executive shall not (other than in the proper performance of his duties
or with the prior written consent of the Company or unless ordered by a court or
other authority of competent jurisdiction) at any time either during the
continuance of his employment or afterwards disclose to any person or use for
his own benefit or the benefit of any person other than the Company or any
Associated Company or through any failure to exercise all due care and diligence
cause, enable, authorise, assist or permit any unauthorised use or disclosure of
any information which he knows or ought reasonably to know concerns the business
of the Company or any Associated Company or any of its or their suppliers,
agents, distributors, customers or others which shall have been acquired
received or made by the Executive during the course of or in contemplation of
his employment (whether or not expressly designated "confidential" and whether
or not in legible or tangible format) (together "Confidential Information") or
attempt or purport to do any of the foregoing.
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(2) All Records embodying or relating to any Intellectual Property, trade
secret, or Confidential Information shall be the exclusive property of the
Company or any Associated Company and the Executive shall not during the
continuance of his employment or afterwards use cause, enable, authorise, assist
or permit to be used all such Records otherwise than for the exclusive benefit
of the Company or any Associated Company. The Executive shall hand over to the
Company any such Records on the termination of his employment or at the request
of the Company or any Associated Company at any time during the course of his
employment.
(3) For the avoidance of doubt and without prejudice to the generality of this
Clause 10 the following is a non-exhaustive list of matters which in relation to
the Company or any Associated Company are considered to be confidential and must
be treated as such by the Executive:-
(a) all trade secrets of the Company or any Associated Company;
(b) all information relating to prices, discounts, mark-ups, marketing,
future business strategy, tenders and any price-sensitive information
of the Company or any Associated Company;
(c) all customer lists, supplier lists, details of contracts with or
requirements of customers and suppliers and any details relating to
information on the Company's or any Associated Company's database;
(d) any details about the Company's or any Associated Company's products,
publications, processes, technologies, inventions, analysis or
research;
(e) any information relating to any computer software (both source code and
object code) and other Intellectual Property of the Company or any
Associated Company;
(f) any technical data, know-how, information or operations manual of the
Company or any Associated Company; and/or
(g) any information in respect of which the Company or any Associated
Company is bound by an express or implied obligation of confidence to
any third party.
(4) The provisions of this Clause 10 shall not apply to any Confidential
Information which:-
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(a) is in or enters the public domain other than by breach of this
Agreement by the Executive; or
(b) is obtained from any third party who is lawfully authorised to disclose
such information.
(5) The Executive shall at all times both during the continuance of his
employment and afterwards inform the Company of any actual, suspected or
threatened use or disclosure of any Confidential Information in contravention of
this Agreement as soon as the same becomes known to the Executive and shall at
the cost and expense of the Company unconditionally render such assistance to
restrain such further use or disclosure as the Company may request.
11. RECORDS
(1) During the continuance of this Agreement the Executive shall not-
(a) make, copy or reproduce in any form (otherwise than for the exclusive
benefit of the Company or any Associated Company) any Records in whole
or in part;
(b) use or permit any Records to be used otherwise than for the exclusive
benefit of the Company or any Associated Company and on the basis that
it is the intention of the parties hereto that the Records and any
copies or reproductions thereof shall be and remain the exclusive
property of the Company or any Associated Company; or
(c) attempt or purport to do any of the foregoing or cause, enable, permit,
authorise or assist any other person to do any of the foregoing.
(2) During the continuance of this Agreement the Executive shall observe and
comply with all security measures introduced by or on behalf of the Company or
any Associated Company from time to time to safeguard and protect the Records
from theft or unauthorised access by any person or from loss or damage caused by
computer bugs or viruses or otherwise howsoever.
(3) The Executive shall on request and in any event immediately on the
termination of this Agreement for any cause or by any means whatsoever deliver
up to the Company or any Associated Company all Records which the Executive has
or has caused to be made copied or reproduced in any form and all other
documents, papers, materials and property belonging or relating to the Company
or any Associated Company in the Executive's possession, power, custody or
control and shall not retain
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any copies or reproductions thereof and, as appropriate, destroy, erase or
delete from any data storage medium, including without limitation any computer
hard disk or drive and from any floppy disk in the Executive's possession,
power, custody or control all Records and/or Confidential Information, together
with a written statement signed by the Executive certifying the same.
12. INTELLECTUAL PROPERTY
(1) The Executive shall immediately notify the Company in writing of the general
nature of any discovery invention idea development secret process or improvement
in procedure made or discovered by him (irrespective of whether it was so made
or discovered during normal working hours or using the facilities of the Company
or any Associated Company and irrespective of whether or not the Executive
considers that by virtue of Section 39 Patents Act 1977 or any similar provision
of applicable law not capable of exclusion rights thereto fail to vest in the
Company or any Associated Company) and which in any way relates or may be
related to any product, service, work, method or process of the Company or any
Associated Company or to any Confidential Information ("Invention").
(2) As between the Company or any Associated Company on the one hand and the
Executive on the other hand the entitlement to any Invention shall be determined
in accordance with the provisions of the Patents Act 1977.
(3) The Executive shall promptly provide to the Company or any Associated
Company full written disclosure of any Invention and if and whenever required by
the Company or any Associated Company so to do (whether or not during the
continuance of his employment hereunder) shall at the expense of the Company or
any Associated Company but without additional payment to the Executive (except
to the extent provided in Section 40 Patents Act 1977 or any similar provisions
of applicable law) apply or join with the Company or any Associated Company or
any other persons in applying for letters patent or other equivalent protection
(except only to the extent that by virtue of Section 39 Patents Act 1977 or any
similar provision of applicable law not capable of exclusion such rights fail to
vest in the Company or any Associated Company) in the United Kingdom and in any
other part of the world for such Invention and unconditionally do such things
and execute such documents as the Company or any Associated Company may
reasonably request in connection therewith.
(4) It is hereby agreed that (subject only to Clause 12(2)) the Company or any
Associated Company shall be solely and exclusively entitled to the entire and
unencumbered Intellectual Property in all works, processes, methods, Inventions
and/or products (including without limitation, any computer software) made by
the Executive during the continuance of this Agreement and which are connected
with or relate in any
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way to the business of the Company or any Associated Company whether or not so
made during the Executive's employment hereunder and the Executive hereby:
(a) undertakes at the expense of the Company or any Associated Company
immediately and unconditionally to execute all documents and do all
things as the Company or any Associated Company shall require for the
purpose of confirming to and assuring in the name of the Company or any
Associated Company such Intellectual Property;
(b) undertakes immediately to inform the Company or Associated Company of
the creation or coming into existence of anything to which this Clause
12 applies; and
(c) waives all moral rights in or to anything to which this Clause 12
applies in favour of the Company or Associated Company and for the
avoidance of doubt such waiver shall extend to the licensees and
successors in title of the Company or any Associated Company.
(5) The Executive shall at all times both during the continuance of his
employment and thereafter inform the Company of any actual, suspected or
threatened infringement of any Intellectual Property in contravention of this
Agreement as soon as the same becomes known to the Executive and shall at the
cost and expense of the Company unconditionally render such assistance to
restrain such further infringement as the Company may request.
(6) All rights and obligations under this Clause 12 in respect of any
Intellectual Property made or discovered by the Executive during the Executive's
employment hereunder shall continue in full force and effect after the
termination of the Executive's employment and shall be binding upon his personal
representatives.
13. PROTECTIVE COVENANTS
(1) The Executive acknowledges that during the course of his employment with the
Company he shall receive and have access to Confidential Information belonging
to the Company and any Associated Company (including without limitation those
matters specified in Clause 10(3) of this Agreement) and the Executive shall
also receive and have access to detailed client and/or customer lists and
information relating to the operations and business requirements of those
clients and/or customers and/or suppliers and accordingly the Executive is
willing to enter into the covenants set out in Clause 13(2) in order to provide
the Company and any Associated Company with what he agrees and considers to be
reasonable protection of those interests.
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(2) The Executive hereby covenants with the Company that he shall not for a
period of 12 months after the termination of his employment without the prior
written consent of the Company either alone or jointly with or on behalf of any
person directly or indirectly carry on or set up or be employed or engaged by or
otherwise assist in a business anywhere in the United Kingdom (or any other
territory in the world where at the date of such termination of employment the
Company or any Associated Company is engaged in business) which is in
competition with the business of the Company or any Associated Company as such
business is carried on at such date.
(3) The Executive hereby covenants with the Company that he shall not for a
period of 12 months after the termination of his employment without the prior
written consent of the Company either alone or jointly with or on behalf of any
person directly or indirectly in connection with the carrying on of any business
in competition with the Company or any Associated Company canvass, solicit or
approach or cause to be canvassed, solicited or approached for orders in respect
of any services provided and/or any goods sold by the Company or any Associated
Company any person or company who or which at the date of termination of the
Executive's employment or at any time during the period of 12 months prior to
that date was a customer or client of the Company or any Associated Company and
with whom or which the Executive shall have had dealings either directly or
indirectly during this period.
(4) The Executive hereby covenants with the Company that he shall not for a
period of 12 months after the termination of his employment without the prior
written consent of the Company either alone or jointly with or on behalf of any
person directly or indirectly in connection with the carrying on of any business
in competition with the Company or any Associated Company do business with any
person or company who or which has at such date of termination or at any time
during the period of 12 months prior to that date done business with the Company
or any Associated Company as a customer or client, and with whom or which the
Executive shall have had dealings either directly or indirectly during this
period.
(5) The Executive hereby covenants with the Company that he shall not for a
period of 12 months after the termination of his employment without the prior
written consent of the Company either alone or jointly with or on behalf of any
person directly or indirectly in connection with the carrying on of any business
in competition with the Company or any Associated Company do business with any
person or company who or which has at such date of termination or at any time
during the period of 12 months prior to that date done business with the Company
or any Associated Company as a supplier and with whom or which the Executive
shall have had dealings either directly or indirectly during this period.
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(6) The Executive hereby covenants with the Company that he shall not for a
period of 12 months after the termination of his employment without the prior
written consent of the Company either alone or jointly with or on behalf of any
person directly or indirectly in connection with the carrying on of any business
in competition with the Company or any Associated Company do business with any
person or company who or which has at such date of termination or at any time
during the period of 12 months prior to that date done business with the Company
or any Associated Company as a distributor and with whom or which the Executive
shall have had dealings either directly or indirectly during this period.
(7) The Executive hereby covenants with the Company that he shall not for a
period of 12 months after the termination of his employment without the prior
written consent of the Company either alone or jointly with or on behalf of any
person directly or indirectly solicit or entice away or endeavour to solicit or
entice away from the Company or any Associated Company any person who at such
date of termination or at any time during the period of 12 months prior to that
date is employed or engaged by the Company or any Associated Company as a
consultant and with whom the Executive shall have had contact either directly or
indirectly during this period (whether or not such person would commit a breach
of his contract of employment by so doing).
(8) The Executive hereby covenants with the Company that he shall not for a
period of 12 months after the termination of his employment without the prior
written consent of the Company either alone or jointly with or on behalf of any
person directly or indirectly solicit or entice away or endeavour to solicit or
entice away from the Company or any Associated Company any person who at such
date of termination or at any time during the period of 12 months prior to that
date is employed or engaged by the Company or any Associated Company in a senior
capacity and with whom the Executive shall have had contact either directly or
indirectly during this period (whether or not such person would commit a breach
of his contract of employment by so doing).
(9) The Executive hereby agrees that he shall at the cost of the Company enter
into a direct agreement or undertaking with any Associated Company whereby he
shall accept restrictions and provisions corresponding to the restrictions and
provisions in Clauses 13(2), (3), (4), (5), (6), (7) and (8) above (or such of
them as may be appropriate in the circumstances) in relation to such activities
and such area and for such period not exceeding that specified in sub-clause
13(2) as such Associated Company may reasonably require for the protection of
its legitimate business interests.
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(10) The covenants contained in Clauses 13(2), (3), (4), (5), (6), (7) and (8)
are separate and severable and enforceable as such and in the event of any such
restriction being rendered or adjudged invalid or unenforceable in whole or in
part for any reason then such covenant or covenants or part of a covenant shall
be deemed to be severed from this Agreement and such invalidity or
unenforceability shall not affect the validity or enforceability of the
remaining covenant or covenants or part of a covenant contained in Clauses
13(2), (3), (4), (5), (6), (7) and (8).
(11) The Executive hereby agrees and declares that having taken independent
legal advice, if any one or more or any part of the covenants contained in this
Clause 13 shall be rendered or judged invalid or unenforceable by a court of
competent jurisdiction then such covenant or covenants or part of a covenant
shall be deemed to be severed from this Agreement and such invalidity or
unenforceability shall not affect the validity or enforceability of the
remaining covenant, covenants or part of a covenant contained in this Clause 13
and the Executive hereby acknowledges that, having taken independent legal
advice, the above covenants are not unfair and are not unreasonable in the
circumstances and do not go beyond what is reasonably necessary for the
protection of the goodwill and the business of the Company or any Relevant
Associated Company.
(12) Any period spent by the Executive on "Garden Leave" in accordance with
Clause 14(2) below shall be deducted from the period of restriction referred to
in Clauses 13(2), (3), (4), (5), (6) (7) and (8)] above.
14. TERMINATION
(1) Subject to the remainder of this Clause 14 the Executive's employment may be
terminated by either party giving not less than 12 months' notice in writing to
the other party.
(2) The Company shall be entitled during the period of any notice given pursuant
to this Clause 14 to require the Executive to cease to attend at the premises of
the Company or any Associated Company or to undertake any work for a proportion
of or the whole period of notice. During such period or periods the Executive
shall nevertheless remain available to perform any such duties and/or to
exercise any such powers; authorities and discretions (if any) if and when
called upon to do so by the Company and remain bound (subject to this clause
14(2)) by the remaining provisions of this Agreement which shall continue to
remain in full force and effect. The Executive shall not be entitled to any
payment in damages or be entitled to make bring or base any claim or
counterclaim whatsoever upon or as a result of the exercise by the Company of
its rights under this Clause 14(2). The Executive shall continue to receive
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his salary and other benefits (if any) should the Company exercise its rights
under this sub-clause.
(3) The Company may at its absolute discretion elect to terminate the employment
of the Executive with immediate effect by paying the Executive salary in lieu of
notice, calculated in accordance with the provisions set out in this Agreement
under Clause 6(1) at the rate current on the date of termination in respect of
the period of notice referred to in Clause 14(1). For the avoidance of doubt,
the right of the Company to make a payment in lieu of notice does not give rise
to any right of the Executive to receive such a payment.
(4) The employment of the Executive may be terminated by the Company forthwith
without notice or payment in lieu of notice if the Executive:-
(a) commits any serious or persistent breach or non-observance of any of
the terms or conditions contained in this Agreement; or
(b) is guilty of any negligence, gross misconduct or dishonesty in
connection with or affecting the business or affairs of the Company or
any Associated Company for which the Executive is required to perform
duties; or
(c) is guilty of conduct which in the reasonable opinion of the Board
brings or is likely to bring the Executive or the Company or any
Associated Company into disrepute; or
(d) is convicted of an arrestable offence other than a road traffic offence
for which a non-custodial penalty is imposed; or
(e) is adjudged bankrupt or makes any arrangement or composition with his
creditors or has an interim order made against him pursuant to section
252 of the Insolvency Act 1986; or
(f) causes any agreement entered into by the Company or any Associated
Company relating to the provision of the Executive's services to be
terminated without notice by any other party to such agreement; or
(g) by reason of ill-health, accident or otherwise becomes or is unable
properly to perform the Executive's duties hereunder (whether or not
the Executive shall be prevented from full-time attendance to such
duties and/or the Executive is receiving or may otherwise receive any
benefit under the Company's permanent health insurance scheme) for a
total period or periods aggregating 26 weeks in any 12 months; or
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(h) in the reasonable opinion of the Company becomes incapable by reason of
mental disorder of discharging his duties; or
(i) is or becomes prohibited by law from being a company director for the
purposes of the Companies Acts.
(5) The employment of the Executive shall terminate automatically and without
prior notice upon the Executive attaining the age of 65.
(6) If the Executive shall have been absent from work due to sickness or injury
or other incapacity for periods in excess of 13 weeks in aggregate in any period
of 12 consecutive months the Company may terminate his employment (whether or
not the Executive is receiving or may otherwise receive any benefit under the
Company's permanent health insurance scheme) by giving him not less than 3
months' notice in writing expiring at any time.
(7) Upon termination of the Executive's employment for whatever reason:-
(a) the Executive shall not take away conceal or destroy but shall
immediately deliver up to the Company all Records which the Executive
has or has caused to be made, copied or reproduced in any form together
with all Confidential Information and any other property belonging to
the Company or any Associated Company which may then be in the
Executive's possession, power or custody or under the Executive's
control, together with a written statement signed by the Executive
certifying the same;
(b) the Executive shall not at any time thereafter make any untrue or
misleading oral or written statement concerning the business or affairs
of the Company or any Associated Company nor represent himself or
permit himself to be held out as being in any way connected with or
interested in the business or affairs of the Company or any Associated
Company (except as a former employee for the purpose of communications
with prospective employers or complying with any applicable statutory
requirements);
(c) the Executive shall immediately repay all outstanding debts or loans
due to the Company or any Associated Company and the Company is hereby
authorised to deduct from any wages (as defined in Part II of the
Employment Rights Act 1996) of the Executive a sum equal to any such
debts or loans together with any interest thereon as appropriate; and
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(d) the Executive shall upon request by the Company immediately resign from
the office as a director of the Company and from all other offices and
appointments held by the Executive in or on behalf of the Company and
any Group or Associated Company in each case without compensation for
loss of office.
(8) If the employment of the Executive is terminated by reason of the
liquidation of the Company for the purpose of reconstruction or amalgamation or
as part of any arrangement for the amalgamation or reconstruction of the Company
not involving liquidation and the Executive is offered employment with any
concern or undertaking resulting from this reconstruction or amalgamation on
terms and conditions which taken as a whole are not less favourable than the
terms of this Agreement then the Executive shall have no claim against the
Company in respect of such termination.
(9) Any rights or obligations of the Executive under this Agreement which are
expressed to continue after the date of termination shall continue in full force
and effect notwithstanding the termination of the Executive's employment.
15. DISCIPLINARY AND GRIEVANCE PROCEDURES
(1) There is no formal disciplinary procedure purposes applicable to the
Executive's employment. The Executive shall be expected to maintain the highest
standards of integrity and behaviour.
(2) The Company shall be entitled, in order to investigate any complaint made
against the Executive, to suspend the Executive on full pay for so long as may
be necessary to carry out a proper investigation and hold a disciplinary
hearing.
(3) If the Executive is not satisfied with any disciplinary decision taken in
relation to him he may apply in writing (within 5 working days of the decision
being notified to him) to the Board whose decision shall be final.
(4) If the Executive has any grievance in relation to his employment he may
raise it in writing with the Board whose decision shall be final.
16. ASSIGNMENT
The Company reserves the right to assign its rights and obligations under this
Agreement to any Associated Company and thereafter any reference to the Company
in this Agreement shall be a reference to any such Associated Company.
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17. NOTICES
(1) Any notice to be given under this Agreement shall be given in writing and
shall be deemed sufficiently served by one party on the other if it is delivered
personally or is sent by first class post (air mail if overseas) addressed to
either the Company's place of business for the time being marked for the
attention of Executive Director of the Company or the Executive's last known
address as the case may be.
(2) Any notice delivered personally shall be deemed to have been given at the
time of such delivery and any notice sent by post shall be deemed (in the
absence of evidence of earlier receipt) to be received 2 days after posting (6
days if sent by air mail) and in proving the time such notice was sent it shall
be sufficient to show that the envelope containing it was properly addressed
stamped and posted.
18. POWER OF ATTORNEY
(1) The Executive hereby irrevocably and by way of security grants to the
Company (with power for the Company to grant a separate power to any Associated
Company on behalf of the Executive) power of attorney on behalf of the Executive
to sign all such documents, execute all such deeds and do or refrain from doing
all such things as the Company exercising the power or such concurrent power may
in its entire unfettered discretion consider appropriate convenient or necessary
in any part of the world for the purposes of fulfilling the Executive's
obligations under this Agreement. The Executive shall grant such separate powers
of attorney in such form or forms as the Company (or the relevant Associated
Company) may reasonably require for such purposes, and the power granted by this
Clause 18 shall empower the attorney to grant such further powers in the name
and on behalf of the Executive.
(2) Notwithstanding the foregoing and merely as a matter between the Company (or
the relevant Associated Company) and the Executive the powers granted by the
Executive under this Clause 18 shall not be used except with the consent of the
Executive or following the failure of the Executive to sign execute do or
refrain from doing forthwith upon request made of the Executive in writing and
no party dealing with the attorney shall be concerned as to whether the
procedure of this Clause 18 shall have been followed.
19. MISCELLANEOUS
(1) The Company reserves the right to make reasonable variations to the
Executive's terms and conditions of employment by giving the Executive not less
than one month's written notice.
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(2) Any benefits provided by the Company or any Associated Company to the
Executive which are not expressly agreed to in this Agreement shall be regarded
as purely ex gratia benefits provided at the entire discretion of the Company or
any Associated Company and shall not form part of the Executive's contract of
employment.
(3) The Executive acknowledges that any breach by him of any of the terms of
Clauses 10, 11 or 12 of this Agreement may inflict irreparable damage to the
Confidential Information and/or the Intellectual Property referred to in those
Clauses and entitle the Company or an Associated Company to an injunction as
well as to damages, costs and other relief.
IN WITNESS whereof this Agreement has been executed as a Deed on the date and
year first above written.
SIGNED AS A DEED BY )
IDEAL HARDWARE LIMITED ) /s/ (ILLEGIBLE)
acting by:- )
Director /s/ (ILLEGIBLE)
Director/Secretary CEO BELL MICRO
SIGNED as a DEED by )
THE SAID IAN MICHAEL ) /s/ (ILLEGIBLE)
FRENCH IN THE PRESENCE OF:- )
Witness Signature: /s/ L.J. STRONGITHARM
Witness Name: Linsey Strongitharm
Witness Address: 20 Willow Way, Evell Court, Epsom KT190EH
Witness Occupation: P.A.
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SCHEDULE 1
ADDITIONAL BENEFITS
1. CAR ALLOWANCE
(1) In order to assist the better performance of the Executive's duties the
Executive shall during the Appointment receive in the sum of Pound Sterling
6,000 per annum car allowance, payable in equal monthly installments on or about
the last working day of every month.
2. PENSION BENEFITS
(1) The Company shall during the continuance of this Agreement pay Pound
Sterling 1,000 per month to one or more personal pension schemes within the
meaning of Part XIV Chapter I of the Income and Corporation Taxes Act 1988
effected by the Executive PROVIDED that the such Personal Pension Schemes are
approved or provisionally approved by the Inland Revenue and PROVIDED that if
payment is made to more than one personal pension scheme in a year the aggregate
so paid shall not exceed Pound Sterling 12,000 per annum.
3. ILLNESS AND MEDICAL INSURANCE
The Executive shall be entitled to membership of the Company's medical insurance
and personal accident schemes (subject to the rules of the schemes) from time to
time in force. The Company reserves the right to withdraw or amend any of the
rules or benefits under such schemes at any time and reserves the right to
terminate the Executive's participation in such schemes at any time. The
Executive shall submit to such medical examinations as may be prescribed by the
relevant insurance company from time to time and permit disclosure of the
results of such medical examination to the Company.
4. LIFE ASSURANCE
The Executive shall be entitled to membership of the Company's life assurance
scheme, subject to the rules of the scheme from time to time in force. The
Company reserves the right to withdraw or amend any of the rules or benefits
under such scheme at any time and reserves the right to terminate the
Executive's participation in such schemes at any time.
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5. CRITICAL ILLNESS INSURANCE
The Company shall during the continuance of this Agreement pay to Skandia Life
on behalf of the Executive the monthly premiums in the sum of Pound Sterling
740.40 in respect of the Executive's Lifetime Cover Plus policy number
SLP019246308 for so long as the policy remains in force.
6. PERMANENT HEALTH INSURANCE
The Executive shall be entitled to membership of the Company's medical insurance
and permanent health insurance (subject to the rules of the scheme) from time to
time in force. The Company reserves the right to withdraw or amend any of the
rules or benefits under such scheme at any time and reserves the right to
terminate the Executive's participation in such scheme at any time. The
Executive shall submit to such medical examinations as may be prescribed by the
relevant insurance company from time to time and permit disclosure of the
results of such medical examination to the Company.
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SCHEDULE 2
BONUS
1. In this Schedule the definitions set out in the Agreement shall also be
deemed to apply herein and in addition the following expressions shall
have, unless the context otherwise requires, the following meanings:-
"Financial Year"
means the relevant 12 month financial period for which annual accounts of the
Company shall have been prepared.
2. In addition to the remuneration payable to the Executive pursuant to
Clause 6(1), the Company shall pay to the Executive in respect of each
Financial Year of the Company during the continuance of the Agreement a
bonus of Pound Sterling 125,000 ("the Bonus") strictly conditional upon
100% achievement of objectives agreed between Bell Microproducts, Inc.
and the Executive for the Financial Year of the Company. If payable,
the Bonus will be paid by the Company to the Executive within 30 days
after determination that the objectives were 100% achieved, such
determination to be made by the President of Computer Products Group,
whose decision shall be final and binding upon the Executive and the
Company.
3. In the event the Executive resigns or is dismissed for gross misconduct
then the Executive shall forfeit and waive any entitlement to the right
to claim any "Bonus" entitlement not paid, and hold the Company in
respect thereof. In the event the Executive is dismissed for reasons
other than gross misconduct prior to 100% achievement of the
objectives, he is not entitled to a Bonus payment. If the Executive is
dismissed for reasons other than gross misconduct after 100%
achievement of the objectives, he is entitled to the Bonus payment.