EXHIBIT 10.31
(1) INSIGHT DIRECT (UK) LIMITED
(2) STUART FENTON
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EXECUTIVE SERVICE AGREEMENT
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS ........................................................... 1
2. EMPLOYMENT AND JOB DESCRIPTION ........................................ 5
3. COMMENCEMENT & CONTINUITY ............................................. 5
4. DUTIES ................................................................ 5
5. HOURS OF WORK ......................................................... 7
6. REMUNERATION, BONUS AND BENEFITS ...................................... 8
7. EXPENSES .............................................................. 10
8. SICKNESS .............................................................. 10
9. HOLIDAYS .............................................................. 11
10. CONFIDENTIALITY ....................................................... 12
11. TERMINATION ........................................................... 14
12. RESTRICTIONS .......................................................... 16
13. INTELLECTUAL PROPERTY ................................................. 18
14. PERIOD OF EMPLOYMENT .................................................. 19
15. GRIEVANCE/DISCIPLINARY MATTERS ........................................ 19
16. COLLECTIVE AGREEMENTS ................................................. 19
17. DATA PROTECTION ....................................................... 20
18. PRIOR AGREEMENTS ...................................................... 20
19. EMPLOYMENT RIGHTS ACT 1996 ............................................ 20
20. GENERAL ............................................................... 20
THIS AGREEMENT IS MADE THE 12TH DAY OF SEPTEMBER 2002
BETWEEN:
(1) INSIGHT DIRECT (UK) LIMITED a company registered in England with number
2579852 whose registered office is at Weston Rouse, West Bar Green
Sheffield S1 2DA ("Company"); and
(2) STUART FENTON of 29 Penn Place Ricksmansworth Hertfordshire WD3 1QA
("Executive").
THE PARTIES AGREE as follows:
1. DEFINITIONS
1.1 In this agreement the following words and expressions shall have the
following meanings unless the context otherwise requires:
"ACT" Employment Rights Act 1996;
"CLAIMS" includes any claim based on any
cause of action, whether in
negligence, breach of contract,
statutory or otherwise, for any
remedy whether in the nature of
financial compensation or
restitution for any loss or damage
which has been or may be suffered
including damages (at law or in
equity), costs, interest, attorney's
fees or otherwise;
"CLIENT" any person, firm, company or other
entity which or who at any time
during the 12 months preceding the
Termination Date was
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a client or customer or was to the
Executive's knowledge a prospective
client or customer of the Company or
of any other company within the
Group and with which or whom the
Executive shall have had dealings
during such period;
"COMMENCEMENT DATE" The first actual day of employment
with the Company, as agreed by the
parties;
"CONFIDENTIAL INFORMATION" the information and trade secrets
referred to in clause 10.2;
"FIRST PERIOD OF RESTRICTION" the period commencing on the
Termination Date and terminating
twelve months from the Termination
Date;
"GROUP" the Company and any holding company
of the Company and any subsidiaries
of the Company or of any such
holding company from time to time;
"HOLDING COMPANY" have the same meanings as are
AND "SUBSIDIARY" respectively attributed to them in
section 736 Companies Act 1985;
"HOLIDAY YEAR" from 1 January to 31 December each
year;
"INTELLECTUAL PROPERTY RIGHTS" all existing and future copyright,
database rights, registered designs,
design rights, trade marks, patents,
applications for any of the
foregoing and all other intellectual
property rights, in any part of the
world, for the full term of such
rights and any renewals and
extensions thereof;
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"KEY EMPLOYEE" any employee of or independent
contractor of the Company (or any
company in the Group to which the
Executive shall have, at any time
during the period of six months
preceding the Termination Date,
provided any services) working in a
senior capacity or, any independent
contractor and, in each case: (i)
generating revenue or supplier
rebates; (ii) working in the key
management functions or (iii) client
management or sales and with whom
the Executive has, during the period
of twelve months prior to the
Termination Date, had any personal
dealings;
"MATERIAL" all information, methods,
techniques, inventions, processes,
reports, drawings, plans, research,
know-how, systems, confidential
information, creative works,
concepts and other material
produced, developed or discovered by
the Executive, (either alone or with
others) relating to the business of
the Company or any company in the
Group or pertaining to, resulting
from or suggested by the work the
Executive does for the Company or
any company in the Group, during the
term of this agreement;
"NORMAL PLACE OF WORK" any of the Company's offices in the
UK;
"PRESIDENT IEI" the President of Insight Enterprises
Inc, from time to time;
"RESTRICTED BUSINESS" Any business which is directly
competitive with the business
carried on by the Company
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or any company in the Group:
(a) at the Termination Date; or
(b) during the period of 12 months
preceding the Termination Date;
including the supply and marketing
of computer hardware, software,
peripherals and associated services;
"SALARY" the salary payable pursuant to
clause 6.1, as reviewed from time to
time;
"SECOND PERIOD OF RESTRICTION" the period commencing on the
Termination Date and terminating 18
months from the Termination Date;
"SUPPLIER" any person, firm, company or other
entity which or who at any time
during the period of 12 months
preceding the Termination Date was a
supplier or was to the Executive's
knowledge a prospective supplier of
the Company or of any other Company
in the Group and with which or whom
the Executive had dealings during
such period; and
"TERMINATION DATE" the date on which this agreement
terminates irrespective of the cause
or manner.
"THIRD PERIOD OF RESTRICTION" the period commencing on the
Termination Date and terminating 6
months from the Termination Date.
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1.2 The clause headings in this agreement are for the convenience of the
parties only and shall not affect its interpretation in any way.
1.3 Any amendment to the terms and conditions set out in this agreement shall
only be valid if set out in writing and signed by both parties.
2. EMPLOYMENT AND JOB DESCRIPTiON
2.1 The Company employs the Executive and the Executive agrees to serve the
Company as Managing Director of the Company in the UK and its subsidiaries
in the UK, or in such other capacity as the President IEI may direct from
time to time, and to serve any other company within the Group as may from
time to time be required by the President IEI on and subject to the terms
of this agreement.
3. COMMENCEMENT & CONTINUITY
3.1 The Executive's employment with the Company shall commence on the
Commencement Date and shall continue unless and until it is terminated in
accordance with Clause 11.
4. DUTIES
4.1 The Executive shall be a director of the Company and (subject always to
the directions of the President IEI), together with any other director
appointed from time to time by the President IEI, conduct the general
management of the business of the Company in the UK and of any subsidiary
of the Company in the UK and shall also carry out such other duties for
companies in the Group as the President IEI may from time to time require.
4.2 For the duration of this agreement the Executive shall (without prejudice
to the generality of clause 4.1) in the course of his duties:
4.2.1 diligently and faithfully serve the Company and use his utmost
endeavours to promote its interests;
4.2.2 render his services in a professional and competent manner and in
willing cooperation with others;
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4.2.3 undertake such travel inside and outside the United Kingdom as may
be required for the proper performance of his duties; and
4.2.4 at all times comply with the rules and procedures of the Company and
of any association or professional body to which the Company and/or
the Executive may from time to time belong.
4.3 The Executive shall report to the President IEI (or such other person as
the President IEI may from to time determine) as the President IEI may
from time to time determine and shall at all times keep the President IEI
(or such other person) fully informed of his activities and shall promptly
provide such information and explanations as may be requested from time to
time by the President IEI (or such other person).
4.4 The Executive shall be based at the Normal Place of Work. The Company
shall have the right to vary the Normal Place of Work from time to time
upon 90 days notice. Should the Company require the Executive to be based
outside of the area of the M25 motorway to a location where it is not
practicable for him to commute, then the Company shall either provide
reasonable rented accommodation for the use of the Executive (at the cost
of the Company) or shall reimburse his reasonable hotel expenses.
4.5 The Executive will be required from time to time to both travel and work
outside the UK in performance of his duties.
4.6 The Company shall be under no obligation to vest in or assign to the
Executive any powers or duties or to provide any work for the Executive
and the Company may, in its discretion:
4.6.1 provide the Executive with alternative work; and/or
4.6.2 suspend the Executive from the performance of his duties including
without limitation requiring him not to contact any customers,
clients, suppliers, agents, professional advisers, brokers, bankers
or employees of the Company or of any company in the Group; and/or
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4.6.3 exclude the Executive from any premises of the Company or of any
company in the Group; and/or
4.6.4 require the Executive to resign from any or all offices in the
Company and any company in the Group.
4.7 Salary and benefits will not cease to be payable to the Executive by
reason only of such suspension, exclusion or requirement and the Executive
shall throughout any such period of suspension or exclusion continue to be
an employee of the Company and shall comply with all his obligations under
this agreement without limitation.
4.8 The Executive shall devote the whole of his time and attention to the
businesses and affairs of the Company and of any other company within the
Group for which he is directed to work, from time to time, in accordance
with this agreement unless prevented by ill health from so doing.
4.9 The Executive shall not during the continuance of this agreement directly
or indirectly enter into or be concerned or interested in any trade or
business or occupation whatsoever other than the business of the Company,
except with the prior written consent of the President IEI.
5. HOURS OF WORK
5.1 Normal working hours are from Monday to Friday inclusive, 9.OOam - 6.OOpm.
The Executive is, however, expected to work such additional hours
including work at weekends and on public holidays without additional pay
as the needs and requirements of the Company dictate and as are required
for the proper discharge of his duties.
5.2 Regulation 4(1) of the Working Time Regulations (the "WTR") provides that
a worker's average working time, including overtime, shall not exceed 48
hours for each seven day period (to be averaged over a period of 17 weeks)
unless the worker agrees that this Regulation shall not apply to his or
her employment. In accordance with Regulation 5 of the WTR the Executive
agrees that Regulation 4(1) of the WTR shall not apply to his employment
with the Company.
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5.3 At any time during his employment, the Executive or the Company may give
three months, prior written notice that clause 5.2 shall cease to apply
with effect from the expiry of the said notice.
6. REMUNERATION, BONUS AND BENEFITS
6.1 Subject as provided in this agreement, the Company shall pay to the
Executive a gross salary of One Hundred and Sixty-Five Thousand Pounds
Sterling (pound l65,000) per annum, which shall accrue from day to day and
be payable by equal monthly instalments, in arrears at the end of every
month (or such other date as the Company may determine) and shall he
inclusive of any fees receivable by the Executive as a director of the
Company and any company in the Group.
6.2 The Salary shall be reviewed by the President IEI annually and any
decision concerning an increase shall be entirely discretionary.
6.3 The Executive may, at the discretion of the Company, receive a bonus from
time to time. Any bonus will be paid in accordance with and subject to the
bonus provisions determined from time to time by and at the absolute
discretion of the President IEI. As at the date of this agreement, the
Executive shall be paid a bonus equal to two percent (2%) of the Company's
net profit after tax as calculated in accordance with the Company's
accounting policies. The accounting policies used in calculating the net
profit of the Company shall be consistent with the accounting policies
applied to the other direct marketing subsidiaries of Insight Enterprises
Inc. This bonus shall be subject to and conditional upon the Company's
quarterly net profit after tax being equal to or greater than at least 80%
of the trailing four (4) quarters' average. This bonus shall be calculated
by the Company and paid quarterly in arrears. The President IEI may vary
the bonus scheme on 90 days notice.
6.4 Subject to the rules of the applicable share option plan, shortly after
the commencement of employment of the Executive, the President IEI shall
recommend to the awards committee of the Insight Enterprises Inc 1998
Stock Option Plan that the Executive be awarded the option to acquire
Fifty Thousand (50,000) shares of the common stock of Insight Enterprises
Inc. The option exercise price shall be determined in accordance with the
rules of the Insight Enterprises Inc 1998 Stock
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Option Plan by reference to the market price of the shares at the date of
grant. Such share options shall vest as follows:
6.4.1 Half the options (over 25,000 shares) shall vest three years after
the date of grant:
6.4.2 The other half (over 25,000 shares) shall vest five years after the
date of grant.
6.5 Subject always to the rules of each scheme from time to time in force and
to the beneficiary's health not being such as to prevent the Company
obtaining cover on reasonable terms, the Executive shall be eligible to:
6.5.1 participate in the private health insurance scheme from time to time
operated by the Company for the benefit of the Executive and his
immediate family;
6.5.2 be covered by the death in service insurance scheme from time to
time operated by the Company.
6.6 The Executive shall be eligible, on completion of three months service, to
participate in the Group Personal Pension Scheme ("the Scheme") subject to
the terms and conditions of such Scheme from time to time in force.
Details of the Scheme may be obtained from the HR Department. The Company
reserves the right to terminate, or substitute another pension scheme(s)
for the Scheme. The Company shall make a contribution of seven percent
(7%) of base Salary to such scheme to match the contribution made by the
Executive. At the request of the Executive, the Company shall pay this
pension contribution to a personal pension scheme established by the
Executive in his name.
6.7 The Executive shall be provided with a mobile phone for his business use
and reasonable personal use. The Executive shall return his mobile phone
on request.
6.8 The Executive shall be reimbursed his reasonable business mileage in
accordance with the Company's policy from time to time.
6.9 Any benefits provided by the Company to the Executive which are not
expressly referred to in this agreement shall be provided to and be
enjoyed by the Executive at
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the entire discretion from time to time of the President IEI and shall be
regarded as ex-gratia.
6.10 The Executive authorises the Company to deduct from his remuneration under
this agreement any sums due from him to the Company including, any
overpayments, loans or advance made to him by the Company.
7. EXPENSES
In addition to his remuneration, the Executive shall be reimbursed all
reasonable expenses, properly, wholly and exclusively incurred by him in
the discharge of his duties under this agreement upon production of
receipts or other evidence for them and subject to the Executive complying
with the requirements of the Company's expenses policy from time to time
in force.
8. SICKNESS
8.1 If so required by the President IEI at any time, (and whether or not the
Executive is absent by reason of sickness, injury or other incapacity) the
Executive shall undergo a medical or psychological examination by such
doctor or doctors as the President IEI shall nominate at the expense of
the Company. The Executive authorises the Company pursuant to the Access
to Medical Reports Act 1988 to have unconditional access to any report or
reports (including copies of and documents referred to in such reports)
prepared as a result of any such examination as the President IEI may from
time to time require and authorises the doctor(s) concerned to discuss the
same with any representative of the Company.
8.2 If the Executive is absent from his employment, he shall comply with the
Company's policy on reporting absence and illness.
8.3 The Company may appoint a temporary replacement to undertake some or all
of the Executive's duties in the event that any period of incapacity lasts
for more than 20 consecutive working days.
8.4 Subject to compliance by him with the provisions of clauses 8.1 to 8.3,
the Executive may, notwithstanding illness or other incapacity, at the
absolute discretion
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of the Company and without prejudice to the Company's rights pursuant to
this Agreement, continue to receive the Salary or such proportion of it,
for 26 weeks (in aggregate) in such 52 week period and thereafter for such
periods or period as the President IEI may in its absolute discretion
decide provided that any Salary or proportion of it so paid will be
reduced by a sum or sums equal to the aggregate maximum amount of
statutory sick pay which the Executive is entitled to claim in respect of
such period or periods of absence.
8.5 Any salary paid to the Executive pursuant to clause 8.4 shall be inclusive
of any Statutory Sick Pay payable.
9. HOLIDAYS
9.1 The Executive shall, in addition to Bank holidays but inclusive of
statutory entitlement under the WTR, be entitled to 25 working days'
holiday in every Holiday Year and a rateable proportion for any part of
such Holiday Year to be taken at such time or times as shall be convenient
to the Company's business and as decided by the President IEI, but so that
no more than 10 consecutive working days are taken by the Executive at any
one time without the prior consent of the President IEI. The Executive
will be deemed to take statutory entitlement under the WTR first, then
additional contractual entitlement.
9.2 On the termination of this agreement the Executive shall be entitled to
remuneration in lieu of accrued untaken holidays.
9.3 If, on the termination of this agreement, the Executive has taken holiday
in excess of his accrued entitlement, the Company shall be entitled to
deduct from any sum owed by the Company to the Executive a sum
representing such excess holiday taken.
9.4 With the prior written consent of the President IEI, the Executive shall
be entitled to carry forward not more than 10 days accrued holiday
entitlement from one Holiday Year to the next. Any holiday carried forward
must be taken within the first two months of the next Holiday Year or will
thereupon lapse without right to payment in lieu.
9.5 The Holiday Year shall be the leave year for the purposes of parental
leave.
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10. CONFIDENTIALITY
10.1 The Executive recognises that confidential information (which may include
commercially sensitive information) is important to the business of the
Company and will from time to time become known to the Executive. The
Executive acknowledges that the following restraints are necessary for the
reasonable protection of the Company, of its business, the business of the
Group, its clients or their respective affairs.
10.2 The Executive shall during the continuance of his employment hereunder and
after the Termination Date observe strict secrecy as to the affairs and
dealings of the Company and (1) shall not during the continuance of his
employment (except in the proper performance of his duties of employment)
or after the Termination Date (without limit in time), without the prior
written consent of the President IEI, make use of or divulge to any person
and (2) during the continuance of his employment, shall use his best
endeavours to prevent the publication or disclosure of:
10.2.1 details of customers, prospective customers and contractors
(whether they be buyers, producers, suppliers or other contractors)
of the Company or any other company within the Group, including the
terms of business with them and the fees and commissions charged to
or by them and their requirements for specific projects whether
design, idea or information technology oriented;
10.2.2 copies of and information relating to research activities,
inventions, creative briefs, ideas, computer programs (whether in
source code or object code) secret processes, designs and formulae
undertaken, commissioned or produced by or on behalf of the Company
or any company in the Group;
10.2.3 any information relating to:
10.2.3.1 expansion plans, business strategy, marketing plans
and sales forecasts of the Company or any other company
in the Group;
10.2.3.2 financial information, results and forecasts of the
Company or any other company in the Group;
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10.2.3.3 details of the employees and officers of the Company
or any other company in the Group and of the
remuneration and other benefits paid to them;
10.2.3.4 information relating to presentations, tenders,
projects, joint ventures or acquisitions and
developments contemplated, offered or undertaken by the
Company or any other company in the Group;
10.2.3.5 confidential reports or research commissioned by or
provided to the Company or any company in the Group;
10.2.3.6 any pricing information and the Company rate-card or
other information relating to the charges the Company
makes to customers or any discount thereon;
10.2.3.7 any trade secrets of the Company or any company in
the Group including know-how and confidential
transactions;
10.2.4 any information, which the Executive is told is confidential and
any information which has been given to the Company or any other
company in the Group in confidence by buyers, agents, suppliers or
other persons; and
10.3 The obligations contained in clause 10.2 shall cease to apply to any
Confidential Information upon it coming into the public domain, other than
as a result of the direct or indirect disclosure by the Executive in
breach of clause 10.2.
10.4 Nothing in this agreement shall preclude the Executive from making a
protected disclosure in accordance with and subject to the provisions set
out in the Public Interest Disclosure Act 1998.
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11. TERMINATION
11.1 The Company shall be entitled to terminate this agreement at any time,
without giving notice or paying compensation, by summary notice in
writing, if the Executive:
11.1.1 is guilty of gross misconduct including (but not limited to) any
dishonesty or wilful neglect of duty, or wilful damage to Company
property or commits any breach of a material term of this
agreement;
11.1.2 has a bankruptcy order made against him or enters into a voluntary
arrangement within the meaning of section 253 Insolvency Act 1986;
11.1.3 is convicted of any criminal offence, other than a minor motoring
offence which does not render him unable to discharge his duties;
11.1.4 becomes of unsound mind or a patient for the purpose of any statute
relating to mental health;
11.1.5 becomes prohibited by law from being a company director;
11.1.6 is convicted of an offence relating to insider dealing.
11.2 The Executive shall be entitled to terminate this agreement by service of
six month's prior written notice.
11.3 The Company shall be entitled to terminate this agreement (in addition to
the rights under Clause 11.1) by service of the statutory minimum notice
period provided that it pays to the Executive the sum of One Hundred and
Sixty-Five Thousand Pounds Sterling (pounds 165,000) less Salary accruing
during such statutory notice period. Such sum shall be accepted by the
Executive in full and final settlement of all Claims that the Executive
may have against the Company or any Group company (or its or their
employees, officers, executives or shareholders) anywhere in the world and
howsoever arising to the fullest extent permitted by law.
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11.4 The Executive's employment shall terminate automatically (without
compensation) and the Executive shall be required to retire on the last
working day of the financial year in which the Executive's 65th birthday
occurs.
11.5 Upon termination of this agreement for whatsoever reason:
11.5.1 the Executive shall deliver to the Company all notes, memoranda and
other correspondence, documents, papers, credit cards and other
property belonging to the Company or any other company in the Group
or any customer of the Company or any customer of any company in
the Group, which may have been prepared by him or have come into
his possession during the course of or as a result of his
employment with the Company and shall not retain any copies of them
and shall not permit them to be used by any party;
11.5.2 the Executive shall forthwith upon the request of the Company
resign from office as a director of the Company and from all
offices held by him in any other company in the Group.
11.6 The Executive shall have no claim against the Company if this agreement is
terminated by reason of the liquidation of the Company for the purpose of
reconstruction or amalgamation and the Executive is offered employment
with any concern or undertaking resulting from such reconstruction or
amalgamation on terms which are substantially the same as the terms of
this agreement.
11.7 It shall be a condition of participation in any share option scheme from
time to time operated by the Company in which the Executive participates
or shall be entitled to participate that, in the event of the termination
of the Executive's employment with the Company for whatever reason, in
circumstances which could give rise to a claim for wrongful and/or unfair
dismissal (whether or not it is known at the time of dismissal that such a
claim may ensue), the Executive shall not by virtue of such dismissal
become entitled to any damages or any additional damages in respect of any
rights or expectations of whatsoever nature he may have as a holder of
share options under any such scheme.
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12. RESTRICTIONS
12.1 The Executive agrees with the Company that he shall not:
12.1.1 during the continuance of this agreement and until the expiry of
the First Period of Restriction without the written consent of the
Company be directly or indirectly interested or concerned (whether
as a shareholder (to no more than 5% of the equity or ownership
interests), director, employee, partner, consultant, proprietor,
agent or otherwise) in any business, firm or company which competes
with the Company or any company in the Group in relation to the
Restricted Business;
12.1.2 during the continuance of this agreement and until the expiry of
the Second Period of Restriction either for his own account or for
any person, firm or company directly or indirectly solicit or
entice away or endeavour to solicit or entice away any person who
has during the period of nine months preceding the Termination Date
been a director or Key Employee of any company in the Group whether
or not any such person would thereby commit a breach of contract;
12.1.3 during the continuance of this agreement and until the expiry of
the First Period of Restriction for the purposes of any Restricted
Business solicit or entice away or endeavour to solicit or entice
away or deal with any Client or induce or attempt to induce any
Client to cease conducting business with the Company or to reduce
the amount of business conducted with the Company or adversely to
vary the terms upon which any business is conducted with the
Company;
12.1.4 for the purposes of any Restricted Business solicit or entice away
or endeavour to solicit or entice away any Supplier or induce or
attempt to induce any Supplier to cease conducting business with
the Company or to reduce the amount of business conducted with the
Company or adversely to vary the terms upon which any business is
conducted with the Company during the continuance of this agreement
and until:
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12.1.4.1 the expiry of the Third Period of Restriction where
termination occurs in accordance with Clause 11.2, or
12.1.4.2 the expiry of the First Period of Restriction where
termination occurs for any other reason.
12.1.5 during the continuance of this agreement until the expiry of the
First Period of Restriction either for his own account or for any
person, firm or company directly or indirectly employ any person
who has during the period of nine months preceding the Termination
Date been a director or Key Employee of any company in the Group
whether or not any such person would thereby commit a breach of
contract;
12.1.6 without the consent of the Company at any time after the
Termination Date divulge to any person, firm or company the
contents or nature or make use of any material of whatsoever nature
in which the copyright is owned by the Company or any company in
the Group or by any customer of the Company and/or any company in
the Group; or
12.1.7 at any time after the Termination Date present himself or allow
himself to be held out or presented as being at that time in any
way connected with or interested in the business of the Company
(other than as a shareholder, if that is the case,) or (unless he
remains a director or employee of such company) in the business of
any company in the Group.
12.2 Each of the restrictions set out in clause 12.1 constitutes an entirely
separate, severable and independent restriction on the Executive.
12.3 While the restrictions in clause 12.1 are considered by the parties to be
reasonable in all the circumstances it is agreed that if any one or more
of such restrictions shall, either taken by itself or themselves together,
be adjudged to go beyond what is reasonable in all the circumstances for
the protection of the legitimate interest of the Company or the Group but
would be adjudged reasonable if any particular restriction or restrictions
were deleted or if any part or parts of the wording thereof were deleted,
restricted or limited in a particular manner then the restrictions set out
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in clause 12.1 shall apply with such deletions, restrictions or
limitations as the case may be.
12.4 Since the Executive may in the course of his employment also obtain
knowledge of the Confidential Information of any subsidiary and/or
associated company of the Company by reason of duties performed for or
office held in such company the Executive agrees that he will at the
request and cost of the Company enter into a direct agreement or
undertaking with such company whereby he will accept restrictions no more
onerous than the restrictions contained in clause 12.1 (or to such lesser
extent as may be permitted by applicable law)).
12.5 The Executive agrees that the restrictions contained in clause 12.1 are
reasonable and necessary for the protection of the Confidential
Information of the Company and the Group.
12.6 The Executive shall not induce, procure, authorise or encourage any other
person, firm, corporation or organisation to do or procure to be done
anything which if done by the Executive would be a breach of any of the
provisions of clause 12.1.
12.7 In clause 12.1, references to acting directly or indirectly shall include,
without prejudice to the generality of that expression references to
acting alone, jointly with, on behalf of, by means of or by the agency of
any other person, firm, business, company or corporation.
13. INTELLECTUAL PROPERTY
13.1 The Executive shall promptly disclose and deliver all Material to the
Company, or as it may direct. The Company shall be entitled to make such
use of the Material as it deems appropriate and the Executive shall not
use the Material in any manner, save as is necessary in performing his
duties pursuant to this agreement, and shall not disclose, or permit any
third party to use, the Material, in any manner, at any time either during
his employment or after the Termination Date.
13.2 To the extent that the Intellectual Property Rights do not vest in the
Company by operation of law, the Executive hereby irrevocably assigns to
the Company, including by way of future assignment, with full title
guarantee, absolutely and free
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from all encumbrances, all his interest in any and all Intellectual
Property Rights in, or relating to, the Material.
13.3 The Executive shall, without charge to, but at the cost and expense of,
the Company, execute and do all such acts, matters, documents and things
as may be necessary or reasonably required to obtain patent or other
protection for any of the Material or improvements or developments of the
Material and to vest title to the Intellectual Property Rights in, or
relating to, the Material in the Company (or such company as it shall
direct) absolutely.
13.4 To the extent permitted by law, the Executive hereby irrevocably and
unconditionally waives any and all moral rights conferred by the Copyright
Designs and Patents Act 1988 or any rights of a similar nature under law
in any other jurisdiction in and to any and all Material, such waiver in
favour of the Company, its successors in title and assigns.
13.5 The provisions of this clause shall not be affected by reason of the
termination of this agreement for whatever reason and shall continue
thereafter.
13.6 The Company shall be under no obligation to apply for or seek to obtain
patent, design or other protection in relation to any of the Material or
in any way to use, exploit or seek to benefit from any of the Material.
14. PERIOD OF EMPLOYMENT
14.1 For the purposes of the Act the date upon which the Executive's continuous
period of employment began is the Commencement Date.
15. GRIEVANCE/DISCIPLINARY MATTERS
15.1 There are no contractual disciplinary or grievance procedures in respect
of the Executive.
16. COLLECTIVE AGREEMENTS
16.1 There are no collective agreements which affect the terms and conditions
of the Executives employment.
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17. DATA PROTECTION
17.1 The Executive consents to the Company and/or any Group company
holding (and where necessary forwarding outside the EEA) and
processing both electronically and manually the data (including
personal sensitive data) it collects which relates to the Executive,
in the course of the Executive's employment, for the purposes of the
administration and management of its employees and its business and
for compliance with applicable procedures, laws and regulations.
18. PRIOR AGREEMENTS
18.1 This agreement shall take effect on and from the Commencement Date as
from which date all other agreements or arrangements whether written
or oral, express or implied, between the Executive and the Company or
any company in the Group relating to the services or employment
of the Executive shall be deemed to have been cancelled.
19. EMPLOYMENT RIGHTS ACT 1996
This agreement contains the particulars of the terms of employment of
the Executive required by the Act.
20. GENERAL
20.1 The expiry or termination of this agreement for whatsoever reason
shall not affect such of the provisions of it as are expressed to
operate or have effect after its termination and shall be without
prejudice to any right of action already accrued to either party in
respect of any breach of this agreement by the other party.
20.2 Any notices required to be given under the provisions of this
agreement shall be in writing and shall be deemed to have been duly
served if hand delivered or sent by facsimile or, within the United
Kingdom, by first class registered or recorded delivery post and,
outside the United Kingdom, by registered airmail post correctly
addressed to the relevant party's address as specified in this
agreement or at such other address as either party may designate from
time to time.
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20.3 The Executive hereby irrevocably and by way of security appoints the
Company and any Group company now or in the future existing to be his
attorney in his name and on his behalf as his act and deed to sign,
execute and do all acts, things and documents which he is obliged to
execute and do under the provisions of this agreement and in
particular, but without limitation, clause 11.5.2 and 13.1 to 13.3 and
the Executive hereby agrees forthwith on the request of the Company to
ratify and confirm all such acts things and documents signed, executed
and done in pursuant of this power.
20.4 The construction, validity and performance of this agreement shall be
governed by and construed in accordance with the law of England. Each
party irrevocably submits to the exclusive jurisdiction of the courts
of England over any claim or matter arising under or in connection
with this agreement or the legal relationships established by this
agreement.
SIGNED by a director duly authorised )
for and behalf of )
INSIGHT DIRECT (UK) LIMITED )
SIGNED and DELIVERED as a DEED )
by STUART FENTON )
in the presence of: )
Witness
Signature:
Witness
Name:
Witness
Address:
Witness
Occupation:
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