Attached files
DATED
day
of
2004
IDEAL
HARDWARE LIMITED
-
and-
GRAEME
WATT
SERVICE
AGREEMENT
WEDLAKE
BELL
16
Bedford Street
Covent
Garden
London
WC2E 9HF
Direct
Tel: 020 7395 3037
Direct
Fax: 02073953104
Direct
E-Mail: disrael@wedlakebell.com
Ref:
DEI/68670IWB2.148774
THIS AGREEMENT is made on
2004
BETWEEN:-
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1.
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IDEAL HARDWARE LIMITED
registered in England (Company No. 03969946) whose registered
office is at Fountain Court, Cox Lane, Chessington, Surrey KT9 1S1 ("the
Company"); and
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2.
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GRAEME WATT of21
Dalebury Road, Wandsworth Common, London SW17 7HQ ("the
Executive").
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WHEREBY the Executive is
currently seeking a formal release from all contractual obligations owed to
third parties that would fetter his ability to commence employment with the
Company
AND subject to the Executive
being free to commence employment with the Company on the Commencement Date (as
defined below) without being in breach of any contractual obligation owed to any
third party
IT IS AGREED that the Company
shall employ the Executive upon and subject to the following terms and
conditions:
IT IS AGREED as
follows:-
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1.1
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In
this Agreement the following words and expressions shall have the
following meanings unless the context otherwise
requires:-
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"Associated Company" means any
company which is from time to time a holding company or a subsidiary (as those
expressions are defined in Section 736 of the Companies Act 1985) of
the Company, or a subsidiary of any such holding company and so that
"subsidiary" shall also include a subsidiary undertaking as defined in Section
258 of that Act;
"Board" means the board of
directors of the Company from time to time, including any duly appointed
committee or sub-committee;
"Confidential Information"
means any information which the Executive knows or ought reasonably to
know concerning the business of the Company or any Associated Company or any of
its or their suppliers, agents, distributors, customers or others and which
shall have been acquired, received or made by the Executive during the Term
(whether or not expressly designated "confidential" and whether or not in
legible or tangible form) including (without limitation) the matters set out in
Schedule 2;
"Group" means the Company and
the Associated Companies from time to time;
"Intellectual Property" means
all copyright, moral rights, rights in the nature of copyright, trade secrets,
patents, design rights, database rights, trade marks, service marks, logos,
trading and business names, know how, 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 having equivalent or
similar effect in any part of the world;
"Records" means notes,
memoranda, tape recordings, films, photographs, plans, designs, drawings,
computer data, software or any form of record (whether electronic or otherwise),
material or document 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 respective clients, customers, shareholders, employees,
officers, suppliers, distributors and agents or concerning any of its or their
respective dealings, transactions or affairs; and
"Term" means the term of the
employment as defined in sub-clause 2.1.
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1.2
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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.
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1.3
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The
headings in this Agreement (and any descriptive notes in brackets
following references to statutes or to other documents) and any front or
back sheet or cover and any index hereto are for convenience only and
shall not affect the construction or interpretation of this
Agreement.
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1.4
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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, society or
charity.
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1.5
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Any
reference in this Agreement to any "party" or to the "parties" are to the
parties to this Agreement.
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1.6
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Save
as herein expressly otherwise provided, expressions and words which are
defined in the Companies Act 1985 shall have the same meanings in this
Agreement.
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1.7
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This
Agreement shall be binding upon and enure for the benefit of the parties'
respective successors in title and
assigns.
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1.8
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No
right of any party to agree any amendment, variation, waiver, or
settlement, under or arising from or in respect of this Agreement, or to
terminate this Agreement, shall be subject to the consent of any person
who has rights under this Agreement by virtue of the Contracts (Rights of
Third Parties) Act 1999.
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2.1
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The
term of the employment shall commence on 13 April 2004 (the "Commencement
Date") and, subject to Clause 14, shall continue until terminated by the
Company or the Executive giving to the other not less than twelve months'
notice in writing (the "Term").
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2.2
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The
Executive shall provide his services as President of Europe for Bell
Microproducts or in such other capacity as the Company may from time to
time reasonably require.
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2.3
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The
Executive's employment will begin on the Commencement Date, and the
Executive's period of continuous employment for statutory purposes shall
be deemed to have commenced on the same
date.
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3.1
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The
Executive shall during the Term (unless prevented by sickness or
injury):
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3.1.1
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devote
the whole of his time, attention, skill and ingenuity during working hours
(as described in Clause 5) to his duties under this
Agreement;
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3.1.2
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faithfully
and using his best endeavours carry out all work consistent with his
position which may be required of him;
and
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3.1.3
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faithfully
and diligently perform such duties and exercise such powers consistent
with his position as may from time to time be assigned to or vested in him
by the Board;
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3.1.4
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comply
with all reasonable and lawful requests made by the
Board;
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3.1.5
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use
his best endeavours to promote and protect and extend the business,
regulation, welfare and the interests of the Company and the
Group;
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3.1.6
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comply
with all the Company's rules, regulations, policies and procedures from
time to time in force;
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3.1.7
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give
to the Board or such persons as it shall nominate at all times promptly
(in writing if so requested) all such information and explanations as are
known to the Executive regarding the affairs of the Company and the Group
as the Board may require;
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3.1.8
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report
to the Board any matters of concern that come to the Executive's
attention, it being 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;
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3.1.9
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work
from the Company's premises in Chessington, Surrey or such other location
in the United Kingdom as the Company shall
require;
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3.1.10
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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 or as may be necessary for the fulfilment of his role as President
for Europe.
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3.2
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The
Company reserves the right to suspend all or any of the Executive's duties
and powers on such terms as it considers expedient (including a term that
the Executive shall not attend at the Company's or any Associated
Company's premises and/or that the Executive shall not contact or have
dealings with any customer, client, supplier or employee of the Company or
any Associated Company) or to require the Executive to carry out the
duties of another position either in addition to or instead of his duties
as President for Europe of Bell
Microproducts.
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3.3
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The
Company shall be under no obligation to assign any duties to the Executive
and shall be entitled to exclude him from its premises. The Executive
shall remain bound by his obligations of good faith, fidelity and loyalty
to the Company during such suspension, and shall continue to receive his
full salary and benefits.
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3.4
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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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4.1
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During
the Term the Executive shall not (unless the Board shall in its absolute
discretion so consent in writing) carryon or be concerned, engaged or
interested in or assume responsibilities or duties for, whether directly
or indirectly in relation to, any person whether corporate or not (other
than any of the businesses of the Group) save that notwithstanding this
Clause the Executive may:
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4.1.1
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be
interested as a holder directly or through nominees for investment
purposes only in any securities in any person 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 three per cent in aggregate of the
nominal value of the securities concerned for the time being in issue;
and
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4.1.2
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to
the extent that and only for so long as the Board shall in its absolute
discretion so consent in writing, be concerned or take an interest in or
assume responsibilities or duties in any person, provided always
that:
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4.1.2.1
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the
business or activity of such person does not conflict nor compete with and
is not likely to conflict or compete with any business of the Company or
any Associated Company; and
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4.1.2.2
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the
Executive's concern and interest in and responsibilities and duties
towards such person do not and are unlikely to interfere with the proper
performance of the Executive's duties under this
Agreement.
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4.2
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Subject
to any regulations issued by the Company, the Executive shall not be
entitled to receive or obtain directly or indirectly any inducement,
discount, rebate or commission in respect of any sale or
purchase of goods effected or other business transacted (whether or not by
him) by or on behalf of the Company or any Associated Company and if he
(or any firm or company in which he is interested) shall obtain any such
discount, rebate or commission he shall account to the Company or the
relevant Associated Company for the amount received by him (or a due
proportion of the amount received by such -company or firm having regard
to the extent of his interest
therein).
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The
Executive shall work such hours as are necessary or appropriate from time to
time to carry out his duties properly and effectively, with no allowance or
additional payment for overtime. In particular, the Executive agrees that for
the purposes of the Working Time Regulations he is an autonomous worker; without
prejudice to this belief of the parties, the Executive agrees whenever necessary
to work longer than 48 hours per week. The Executive may withdraw his consent to
working in excess of 48 hours per week on three months' written notice to the
Company.
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6.1
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The
Company shall pay the Executive during the Term a salary at the rate of
£285,000 per year (inclusive of any director's fees payable by the Company
or any Associated Company) less deductions for tax and National Insurance
Contributions (Base Salary) 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.
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6.2
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The
Executive's salary may be reviewed from time to time at the absolute
discretion of the Board.
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6.3
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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.
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6.4
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The
Company shall pay the Executive a car allowance of £6,000 per year,
payable by equal monthly instalments on or about the last working day of
each month, provided the Executive shall remain eligible to drive in the
UK. In addition, the Company will pay the Executive a mileage
rate of £0.24 per mile incurred in the proper performance of his duties as
part of the Executive's expenses (Clause
7).
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6.5
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The
Company shall provide the Executive with a lap top computer and GSM mobile
telephone that the Parties deem is appropriate. conditional upon the
Executive complying with his obligations at Clause 17 below, his taking
good care of the equipment and returning the equipment to the Company's
Head Office in the United Kingdom immediately on the termination of his
employment.
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6.6
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The
Executive is entitled to a discretionary bonus in accordance with the
scheme set out in Schedule 1 attached to this Agreement, which shall be
payable at the Company's absolute
discretion.
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6.7
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The
Company shall pay by way of 12 monthly instalments £12,000 per annum into
the Executive's personal pension plan (the "Pension Payment") provided
that the personal pension plan is approved or provisionally approved by
the Inland Revenue; alternatively the Executive may elect to direct some
or all of the Pension Payment for the payment of other insurances or
memberships.
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6.8
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The
Executive shall be eligible to join the Company's private medical
insurance scheme, subject to the rules of the scheme from time to time in
force, or Executive may chose to continue his current medical insurance
scheme in which case the Company will contribute up to £2,018.00 per year
towards the premium cost.
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6.9
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The
Executive may chose to continue his participation in his current life
insurance scheme in which case the Company will contribute up to £3,052.00
per year, including tax gross up, toward the premium
cost.
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6.10
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The
Executive may chose to continue his participation in his current income
protection scheme in which case the Company will contribute up to
£18,210.00 per year, including tax gross up, toward the premium
cost.
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7.
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The
Company shall reimburse the Executive for all reasonable travelling,
accommodation, entertainment and other out-of-pocket expenses wholly and
necessarily incurred by the Executive during the Term in the proper performance
of his duties under this Agreement upon production of receipts or such
appropriate evidence of payment as the Company may require.
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8.
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8.1
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The
Executive shall, in addition to public and bank holidays, be entitled to
25 working days paid holiday in each calendar year or such proportionate
number 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.
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8.2
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The
Company's holiday year runs from 1 January to 31
December.
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8.3
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The
Executive shall not be entitled to carry forward any annual holiday
entitlement untaken by him for any reason during the calendar year in
which it accrued without the prior written consent of the
Board.
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8.4
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Upon
the termination of the Executive's employment 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 provided that
where:-
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8.4.1
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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 (and so that to the extent that any sums
due to the Executive from the Company are insufficient to cover the
excess, the Executive shall pay the balance immediately upon request);
and
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8.4.2
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the
Executive's employment is terminated summarily for cause he shall not be
entitled to receive any pay in lieu of accrued holiday in excess of his
statutory entitlement as at the termination
date.
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8.5
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The
Executive shall 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.
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8.6
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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 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.
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9.1
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If
at any time during the Term the Executive is absent from work due to
sicknessor injury he shall promptly forward to the Company, if required,
evidence of such sickness or injury in a form satisfactory to the
Board.
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9.2
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Provided
that the Executive complies with sub-clause 9.1, the Company will pay the
Executive his Base Salary together with his benefits under the terms of
the Agreement (inclusive of any statutory sick pay) for the first forty
days in aggregate of absence in any period of fifty two weeks but shall
not be required to pay the Executive any salary and/or other remuneration
or benefits for any further periods of such absence in any period of fifty
two weeks, although the Company may do so in its sole discretion (it being
agreed and understood that any exercise of this discretion by the Company
does not give the Executive any right, entitlement or legitimate
expectation for the future).
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9.3
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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 shall be
paid to the Executive by the Company under this Clause and shall 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 in respect
of such period.
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9.4
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At
such time as the Company may reasonably request and at the expense of the
Company the Executive agrees to undergo a medical and/or psychological
examination by a doctor or doctors of the Company's choice and permit
unconditional disclosure of the results of such medical examination to the
Company pursuant to the Access to Medical Reports Act 1988, including
copies of any documents referred to in any such reports. 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.
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10.
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10.1
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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 Term or afterwards disclose or communicate 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 Confidential Information, or attempt or purport to do
any of the foregoing.
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10.2
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All
Records embodying or relating to any Intellectual Property or Confidential
Information shall be and remain the exclusive property of the Company or
the relevant Associated Company.
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10.3
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The
provisions of this Clause 10 shall not apply to any Confidential
Information which:-
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10.3.1
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is
in or enters the public domain other than by breach of this Agreement by
the Executive; or is obtained from any third party who is
lawfully authorised to disclose such
information.
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10.4
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The
Executive shall at all times both during the Term and afterwards use best
endeavours to prevent the unauthorised use, publication or disclosure of
any Confidential Information and shall inform the Company of any actual,
suspected or threatened use, publication or disclosure of any Confidential
Information in contravention of this Agreement as soon as the same becomes
known to the Executive and shall unconditionally render such assistance to
restrain such farther use or disclosure as the Company may
request.
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11.
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11.1
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During
the Term the Executive shall not (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 the relevant Associated
Company):-
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11.1.1
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make,
copy or reproduce in any form any Records in whole or in
part;
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11.1.2
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use
or permit any Records to be used by or for the benefit of any other
person;
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11.1.3
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or
attempt or purport to do any of the foregoing or cause, enable, permit,
authorize or assist any other person to do any of the
foregoing.
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11.2
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During
the Term 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.
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11.3
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The
Executive shall at any time during the Term on request by the Company and
in any event immediately upon termination of this Agreement howsoever
caused, at the Company's
discretion:-
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11.3.1
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deliver
up to the Company or any Associated
Company;
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11.3.2
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and/or
destroy, erase or delete from any data storage medium, including without
limitation, from any computer hard disk or drive and any floppy disk in
the Executive's possession, power, custody or
control
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all
Records and/or Confidential Information which the Executive has made, copied, or
reproduced in any form, and all other documents, papers, materials or property
belonging or relating to the Company or any Associated Company in the
Executive's possession, power, custody or control and the Executive shall within
two days thereafter serve a written statement signed by him on the Company
certifying that he has complied with this Clause 11.3.
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12.1
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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 during the Term
(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").
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12.2
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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.
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12.3
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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
Term) 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.
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12.4
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It
is agreed that (subject only to sub-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 Tenn and which are connected
with or relate in any way to the business of the Company or any Associated
Company whether or not so made in the course of the Executive's employment
under this Agreement and the
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12.4.1
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Executive:-
undertakes 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 of the Patents Act 1977 or any similar provisions of
applicable law) 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;
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12.4.2
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undertakes
immediately to inform the Company or any Associated Company of the
creation or coming into existence of anything to which this Clause
applies; and waives all moral rights in or to anything to which this
Clause applies in favour of the Company or any 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.
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12.5
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The
Executive shall at all times during the Term with the Company and
afterwards inform the Company of any actual, suspected or threatened
infringement of any Intellectual Property 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.
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12.6
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All
rights and obligations under this Clause in respect of any Intellectual
Property made or discovered by the Executive during the Term shall
continue in full force and effect after the termination of the Executive's
employment and shall be binding upon his personal
representatives.
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13.1
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In
relation to the restrictions set out in this
clause:
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13.1.1
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"Business" means any
businesses of the Company and any Associated Company at the Termination
Date and with which the Executive was involved to a material degree in the
twelve months immediately preceding the Termination
Date;
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13.1.2
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"Customer" means any
person, who at any time in the period of twelve months immediately
preceding the Termination Date, was a customer, client, agent or
distributor of or who had regular dealings with the Company or any
Associated Company and with whom or which the Executive had material
contact during the Term;
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13.1.3
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"Employee" means any
person who, at the Termination Date, was employed or engaged by the
Company or an Associated Company:
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13.1.2.1
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at
a senior or key level and who was a person with whom he had material
contact during the period of twelve months prior to the Termination Date;
or
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13.1.2.2
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in
a position which reported directly to the Executive either at the
Termination Date or at any time in the twelve months immediately preceding
that date;
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13.1.4
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"Supplier" means any
person who was a supplier of the Company or any Associated Company at any
time in the period of twelve months immediately preceding the Termination
Date and with which the Executive had material contact during the
Term;
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13.1.5
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"Termination Date" means
the date of termination of the Executive's
employment.
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13.2
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The
Executive will not, for a period of twelve months after the Termination
Date, canvass, approach or solicit or cause to be canvassed, approached or
solicited for orders (in respect of any services provided or goods sold by
any Business) or seek to entice away from the Company or any Associated
Company any business or trade of a Customer with the intention of
supplying goods or services to that Customer so as to compete or seek to
compete with any Business.
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13.3
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The
Executive will not, for a period of twelve months after the Termination
Date, supply goods, or services to, or otherwise have business dealings
with, any Customer in the course of any business or entity which is, or
seeks to be, in competition with any
Business.
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13.4
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The
Executive will not for a period of twelve months after the Termination
Date, for himself or on behalf of any business or entity which is in
competition with any Business, employ or offer employment to an Employee,
or in any way try to entice an Employee away from the Company or any
Associated Company.
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13.5
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The
Executive will not, for a period of twelve months after the Termination
Date, be engaged in or concerned in any capacity in any business or entity
which is or seeks to be in competition with any
Business.
|
|
13.6
|
The
Executive will not, for a period of twelve months after the Termination
Date contact or interfere or have dealings with any
Supplier.
|
|
13.7
|
Nothing
in this Clause shall prevent the Executive from being engaged in or by, or
participating in, any business or entity to the extent that any of his
activities for such business or entity shall relate solely to matters of a
type with which the Executive was not materially concerned in the twelve
months immediately preceding the Termination
Date.
|
|
13.8
|
The
restrictions set out in this Clause apply whether the Executive is acting
for his own benefit or on behalf of any person and whether he acts
directly or indirectly.
|
|
13.9
|
The
Executive agrees that in the event of receiving from any person an offer
of employment either during the Term or during the continuance in force of
any of the restrictions set out above he shall forthwith provide to such
person making such offer of employment, a full and accurate copy of this
Clause.
|
|
13.10
|
Any
period spent by the Executive, either on "Garden Leave" in accordance with
sub-clause 14.2 below or serving out notice in accordance with sub-clause
2.1, shall be deducted from the period of restriction referred to in
sub-clauses 13.1 to 13.8 above.
|
|
14.
|
|
14.1
|
The
Company shall be entitled, during the period of any notice given pursuant
to this Clause and without limiting the Company's right to suspend any of
the Executive's duties and powers under clause 3.3, to require the
Executive to cease to attend at the premises of the Company or any
Associated Company or to undertake any work during all or any part of the
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
sub-clause) by the remaining provisions of this Agreement which shall
continue to remain in fall 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 sub-clause. The Executive shall
continue to receive his salary and other benefits (if any) should the
Company exercise its rights under this subclause. The
Executive, in tum, shall remain bound by his obligations of good faith,
fidelity and loyalty to the Company such that the Executive shall not
compete against the Company, solicit customers or clients of the Company
to transfer their business to the Executive or any third party, or
otherwise make any secret profit, or solicit members of staff to leave the
Company's employment, or breach his obligations not to reveal to any third
party Confidential Information.
|
|
14.2
|
The
Company may at its absolute discretion elect to terminate the employment
of the Executive with immediate effect by paying the Executive's Base
Salary only in lieu of notice (excluding any benefits or emolument
referable to the employment of the Executive under this Agreement).
Furthermore, the Company may in its absolute discretion pay the payment in
lieu of notice in equal monthly instalments in arrears on the dates on
which the Executive's salary and benefits as would usuaily have been paid
and if the Company elects to make such payment by instalments, the
Executive's entitlement shall cease immediately on the date on which the
Executive accepts an offer of alternative employment or engagement and the
Executive shall as soon as reasonably practicable notify the Company in
writing of any such acceptance. For the avoidance of doubt, the right of
the Company to make a payment in lieu of notice, whether as a lump sum or
by way of instalments does not give rise to any right of the Executive to
receive such a payment or payments.
|
|
14.3
|
The
employment of the Executive may be terminated by the Company with
immediate effect without payment in lieu of notice if the
Executive:-
|
|
14.3.1
|
commits
any serious breach or non observance of any of his duties hereunder or
otherwise as an Executive of the Company or any Associated Company;
or
|
|
14.3.2
|
commits,
(after warning) any persistent or continued breach or non-observance of
any of his duties hereunder or otherwise as an Executive of the Company or
any Associated Company; or
|
|
14.3.3
|
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
i
|
|
14.3.4
|
s
guilty of conduct which in the reasonable opinion of the Board brings or
is likely to bring the Executive, the Company or any Associated Company
into disrepute; or
|
|
14.3.5
|
is
convicted of an arrestable offence other than a road traffic offence for
which a non-custodial penalty is imposed;
or
|
|
14.3.6
|
becomes
bankrupt or makes any arrangement or composition with his creditors
generally or has an interim order made against him pursuant to section 252
of the Insolvency Act 1986; or
|
|
14.3.7
|
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
|
|
14.3.8
|
in
the reasonable opinion of the Company becomes incapable by reason of
mental disorder of discharging his duties;
or
|
|
14.3.9
|
is
or becomes prohibited by an applicable law or regulation from being a
director of the Company or Associated Company or from performing any of
his duties, is removed from office pursuant to the Company's articles of
association (unless the removal is caused by sickness or injury other than
mental disorder) or (except at the request of the Company) the Executive
resigns as a director; or
|
|
14.3.10
|
or
in any other circumstances where the Company may legally terminate the
directorship of the Executive;
|
|
14.3.11
|
is
guilty of any breach or non observance of any code of conduct, rule or
regulation referred to in Clause 3.1.6 or fails or ceases to be registered
with or authorised by (where such registration or authorisation is, in the
opinion of the Board, required for the performance of his duties) any
regulatory body in the United Kingdom or
elsewhere.
|
|
14.4
|
The
employment of the Executive shall terminate automatically and without
prior notice upon the Executive attaining the age of 60., unless extended
by the Parties.
|
|
14.5
|
Upon
termination of the Executive's employment for whatever
reason:
|
|
14.5.1
|
the
Executive shall not take away, conceal or destroy but shall immediately
deliver up to the Company all Records and Confidential Information in
accordance with Clause 11.3;
|
|
14.5.2
|
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 nor 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);
and
|
|
14.5.3
|
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
|
|
14.5.4
|
the
Executive shall upon request by the Company immediately resign from his
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 or any
Associated Company in each case without compensation for loss of
office.
|
|
14.6
|
Any
rights or obligations of the Executive, the Company or any Associated
Company under this Agreement which are expressed to continue or are
capable of continuing after the date of termination of his employment
shall continue in full force and effect notwithstanding the termination of
the Executive's employment.
|
|
15.
|
|
15.1
|
Save
as otherwise provided for in the Bell Microproducts Inc Management
Retention Agreement, 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 (and which
protect the Executive's continuity of employment) and the Executive
unreasonably refuses such an offer then the Executive shall have no claim
against the Company in respect of such
termination.
|
|
16.1
|
There
is no formal disciplinary procedure applicable to the Executive's
employment, although the Company shall adopt any statutory disciplinary
procedure in force. The Executive shall be expected to maintain the
highest standards of integrity and
behaviour.
|
|
16.2
|
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.
|
|
16.3
|
If
the Executive is not satisfied with any disciplinary decision taken in
relation to him, he may apply in writing (within five working days of the
decision being notified to him) to the President of Bell Microproducts Inc
whose decision shall be final.
|
|
16.4
|
If
the Executive has any grievance in relation to his employment he may raise
it in writing with the President of Bell Microproducts Inc whose decision
shall be final.
|
|
16.5
|
For
the avoidance of doubt the disciplinary rules and procedures, grievance
and appeal procedures adopted by the Company or notified to the Executive
will not form part of the Executive's contract, except as may be required
by law.
|
|
17.1
|
The
Executive shall have access to the Company's email, internet and telephone
systems, mobile telephone and other forms of electronic communication for
the better performance of his duties provided that the Executive shall not
send any emails of a defamatory or abusive nature or which constitute
sexual, racial or any other form of harassment and he shall be prohibited
from downloading any sexually explicit, pornographic or other offensive
material and the Executive indemnifies the Company during and after the
Term against all liability arising from the Executive's breach of this
sub-clause.
|
|
17.2
|
The
Company reserves the right to monitor all electronic communications sent
and received by the Executive and to monitor the Executive's internet
access, including, as appropriate, the right to open attachments to
business and if appropriate other emails and any files or other material
downloaded from the internet during and outside office hours and whether
for personal or company use. This Clause is without prejudice to the
Executive's obligations under Clause 18 (Data
Protection).
|
|
18.
|
|
18.1
|
For
the purposes of complying with the Data Protection Act 1998 the Executive
agrees to provide the Company or any Associated Company with any personal
data and sensitive personal data relating to him that either may request
and he further consents to the holding and processing (in manual,
electronic or any other form) of such data by the Company and/or any
Associated Company and/or any agent or third party nominated by the
Company and bound by a duty of confidentiality, for the purpose
of:
|
|
18.1.1
|
employee
related administration;
|
|
18.1.2
|
processing
his file and management of its
business;
|
|
18.1.3
|
compliance
with applicable procedures, laws and
regulations;
|
|
18.1.4
|
providing
data to extemal suppliers for the provision and administration of his
remuneration and any benefits
and/or
|
|
18.1.5
|
to
evaluate the efficiency of the Company's and any Associated Companies'
business systems.
|
|
19.
|
|
19.1
|
Notices
to be given to either party under this Agreement shall be given in writing
by hand or by post addressed, in the case of the Company, to its
registered office for the time being marked for the attention of the Chief
Executive or, in the case of the Executive, to his last known
address.
|
|
19.2
|
Any
such notice sent by post shall be deemed (in the absence of evidence of
earlier receipt) to have been 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 and any such notice delivered personally shall be
deemed to have been given at the time of such
delivery.
|
|
20.1
|
This
Agreement supersedes all previous agreements and arrangements whether
written, oral or implied (if any) relating to the employment of the
Executive (such agreements and arrangements (if any) shall be deemed to
have been terminated by mutual consent as and with effect from the
commencement of the Term) and this Agreement sets out the entire agreement
of the parties in relation to the Executive's
employment.
|
|
21.1
|
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 shall
empower the attorney to grant such further powers in the name and on
behalf of the Executive.
|
|
21.2
|
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 shall not be used except with the consent of the
Executive or following the failure of the Executive to sign or execute the
relevant document or to do or refrain from doing the relevant act
forthwith upon request made to the Executive in writing, and no -party
dealing with the power of attorney shall be concerned as to whether the
procedure of this Clause shall have been
followed.
|
|
22.
|
|
22.1
|
The
Executive acknowledges that any breach by him of any of the terms of
Clauses 10, 12 and 13 of this Agreement may inflict irreparable damage to
the Confidential Information and/or 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.
|
|
22.2
|
The
failure to exercise or delay in exercising a right or remedy under this
Agreement shall not constitute a waiver or right or remedy or a waiver of
any other rights or remedies and no single or partial exercise of any
right or remedy under this Agreement shall prevent any further exercise of
the right or remedy or the exercise of any other right or
remedy.
|
|
22.3
|
In the event of any
Clause or sub-clause or parts thereof contained in this Agreement being
held invalid or unenforceable by any judicial, arbitral, regulatory or
other authority of competent jurisdiction all other Clauses or subclauses
or parts thereof contained in this Agreement shall remain in full force
and effect to the fullest extent permitted by law and (subject as
aforesaid) shall not be affected
thereby.
|
This
Agreement shall be governed by and construed in all respects in accordance with
English law and each of the parties hereto submit to the jurisdiction of the
Courts of England and Wales.
|
SIGNED as a DEED by
|
)
|
|
|
IDEAL
HARDWARE LIMITED
|
)
|
|
|
acting
by:-
|
)
|
|
|
/s/
James E. Illson
|
||
|
Director
|
||
|
/s/
W. Donald Bell
|
||
|
Director
Secretary
|
|
SIGNED as a DEED by the
said
|
)
|
|
|
GRAEME
WATT
|
)
|
/s/
Graeme Watt
|
|
acting
by:-
|
||
|
Witness
signature
|
/s/
Daniel Howard
|
|
|
Witness
Name:
|
Daniel
Howard
|
|
|
Witness
Address:
|
16
Bedford Street London WC2 9HF
|
|
|
Witness
Occupation
|
Trainee
Solicitor
|
SCHEDULE 1 –BONUS
|
1.
|
In
addition to the remuneration payable to the Executive pursuant to Clause
6.1, the Executive shall be eligible to receive a bonus under the Bell
Microproducts Inc. Management Incentive Plan ("MIP Bonus") for the
Company's fmancial year, namely the relevant 12 month fmancial period from
January to December (the "Bonus
Year").
|
|
2.
|
The
Executive's amount of MIP Bonus (if any) in any Bonus Year will be subject
to the financial performance of Bell Microproducts, Europe and
accomplishment of the Executive's individual objectives as determined by
the Board and notified to the Executive from time to time ("MIP
Targets").
|
|
3.
|
If
the Executive achieves 100% of the agreed MIP Targets, the Executive shall
receive a MIP Bonus of £142,500 in that Bonus Year. At the discretion of
the Bell Microproducts, Inc. board of directors, Executive may be paid up
to 200% of his MIP Bonus for performance that is above the MIP
Targets.
|
|
4.
|
For
each of the first three quarters ofthe year, Executive will be eligible to
be paid a portion of his MIP Bonus to a maximum of to 25% of his annual
MIP Bonus, based on performance against his quarterly MIP Targets, with
the first three quarterly MIP Bonus payments being an advance of the full
year's MIP Bonus. Each quarter's MIP Bonus shall be paid to the
Executive following the quarterly financial audit and close of the
relevant quarter and approval of the Bell Microproducts Inc board of
directors. The full year's MIP Bonus will be determined at the end of the
Bonus Year, and after the financial audit and close of the relevant Bonus
Year and approval of the Bell Microproducts Inc board of
directors.
|
|
5.
|
During
the first year of the Executive's employment, the Executive shall receive
a MIP Bonus pro-rated from the Commencement Date to 31 December 2004. In
addition, during the period to 31 December 2004 the Executive will receive
the following minimum guaranteed MIP Bonus
payments:
|
|
for
the period 1 April 2004 to 30 June 2004
|
£ | 35,625 | ||
|
for
the period 1 July 2004 to 30 September 2004
|
£ | 17,813 | ||
|
for
the period 1 October 2004 to 31 December 2004
|
£ | 17,813 |
|
6.
|
In
the event that the Executive's employment with the Company terminates,
either by the Executive electing to terminate his employment (other than
for constructive dismissal) or by the Company in accordance with
sub-clause 14.3, then the Executive shall forfeit and waive any
entitlement to the right to claim any part of the MIP Bonus Year's MIP
Bonus not paid. In all other situations, subject to the terms of the Bell
Microproducts Inc. Management Incentive Plan, the Executive shall be
entitled to a MIP Bonus in respect of the quarter his employment
terminates pro-rated in the up to the date of termination of the
Executive's employment.
|
SCHEDULE 2 - CONFIDENTIAL
INFORMATION
The
following is a non-exhaustive list of matters which in relation to the Company
or any Associated Company are considered by the Company or any Associated
Company to be confidential and the Executive hereby agrees such matters are
confidential:
|
1.
|
all
trade secrets of the Company or Associated
Company;
|
|
2.
|
any
and 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;
|
|
3.
|
any
and all customer lists, supplier lists, details of contracts with or
requirements of customers and suppliers, and any details relating to
information on the Company or any Associated Company's
database;
|
|
4.
|
any
and all details about the Company or any Associated Company's products,
publications, processes, technologies, inventions, analysis or
research;
|
|
5.
|
any
and all information relating to any computer software (both source code
and object code) and other Intellectual Property of the Company or any
Associated Company;
|
|
6.
|
any
and all technical data, know-how, information or operations manuals of the
Company or any Associated Company;
and/or
|
|
7.
|
any
and all 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.
|