Attached files
| file | filename |
|---|---|
| 10-K/A - International Cellular Accessories | v212099_10ka.htm |
| EX-31.2 - International Cellular Accessories | v212099_ex31-2.htm |
| EX-31.1 - International Cellular Accessories | v212099_ex31-1.htm |
| EX-10.6 - International Cellular Accessories | v212099_ex10-6.htm |
| EX-14.1 - International Cellular Accessories | v212099_ex14-1.htm |
| EX-14.2 - International Cellular Accessories | v212099_ex14-2.htm |
| EX-32.2 - International Cellular Accessories | v212099_ex32-2.htm |
| EX-32.1 - International Cellular Accessories | v212099_ex32-1.htm |
DATED 9 January 1
2001
|
(1)
|
IMAGE METRICS
PLC
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||
|
(2)
|
KEVIN
WALKER
|
__________________________
SERVICE
AGREEMENT
relating
to
Image
Metrics plc
__________________________
halliwell
landau
DATED 9 January
2001
BETWEEN:
|
(1)
|
IMAGE
METRICS PLC (registered in England and Wales under number 4098216)
having its registered office at St James’s Court, Brown Street,
Manchester, M2 2JF (“the
Company”); and
|
|
(2)
|
KEVIN
WALKER of Flat 5, 21 Old Lansdowne Road, West Didsbury, Manchester
M20 2PB (“the
Director”).
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OPERATIVE
PROVISIONS:
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1
|
Definitions
and Interpretation
|
In this
agreement unless the context otherwise requires:
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1.1
|
the
following words and expressions shall have the following
meanings:
|
“Associated
Company”
a body
corporate which for the time being:
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(a)
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is
a
holding company of the Company or a subsidiary (other than the
Company) of such a holding company;
or
|
|
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(b)
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has
not less than twenty per cent of its equity share capital beneficially
owned by such a holding company or the
Company;
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“Board”
the board
of directors of the Company from time to time;
“Business Day”
a day on
which clearing banks in London are open for a full range of banking
transactions;
“Commencement
Date”
the date
of this agreement;
“Group”
the
Company and any Associated Company from time to time;
“London Stock
Exchange”
London
Stock Exchange plc;
“Prohibited
Business”
any
business or activity carried on by the Company at the Termination Date or at any
time in the Relevant Period in which the Director shall have been directly
concerned to a material extent in the course of his employment at any time in
the Relevant Period;
1
“Prospective
Customer”
any
person, firm, company or other entity who was at the Termination Date or during
the Relevant Period negotiating with the Company with a view to dealing with the
Company as a customer;
“Protected
Supplier”
any
supplier to the Company with whom the Director shall have had material dealings
in the course of his employment during the Relevant Period;
“Relevant Period”
the 12
month period ending with the Termination Date;
“Remuneration
Committee”
the
remuneration committee of the Board from time to time;
“Restricted
Customer”
any
person, firm, company or other entity who was at any time in the Relevant Period
a customer of the Company;
“Review Date”
each
anniversary of the Commencement Date;
“Termination Date”
the date
of termination of the Director’s employment with the Company;
“Territory”
the
United Kingdom;
“WTR”
Working
Time Regulations 1998;
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1.2
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words
and phrases the definition of which is contained or referred to in the
Companies Act 1985 shall be construed as having the meanings thereby
attributed to them;
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1.3
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references
to statutory provisions shall be construed as references to those
provisions as respectively amended or re-enacted or as their application
is modified by other provisions (whether before or after the date hereof)
from time to time and shall include references to any provisions of which
they are re-enactments (whether with or without
modification);
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1.4
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headings
are for ease of reference only and shall not affect
construction;
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1.5
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words
denoting the singular include the plural and vice
versa;
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1.6
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words
denoting one gender include all
genders;
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2
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1.7
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words
denoting persons include firms and corporations;
and
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1.8
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references
to the Director’s employment are to his employment by the Company under
and pursuant to this agreement.
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2
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Position
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2.1
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The
Company shall employ the Director and the Director shall serve the Company
as Engineering Director or in such other capacity as the Board may from
time to time determine provided that such other capacity is commensurate
with the Director’s status as a Director of the
Company.
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2.2
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The
Company is entitled from time to time to appoint any other person or
persons to act jointly with the Director in the performance of his
duties.
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2.3
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If
the Director is at any time unable through sickness, injury or otherwise
to carry out his duties hereunder the Company may temporarily employ any
person or persons to perform those duties in his place until such time as
he is able to resume his duties
hereunder.
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3
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Duties
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During
the continuance of this agreement the Director shall devote the whole of his
time, attention and abilities to the business of the Group and, so far as
consistent with the nature of his office hereunder, shall:
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3.1.1
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undertake
such duties and exercise such powers in relation to the Group as the Board
shall from time to time assign to or vest in
him;
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3.1.2
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in
the discharge of such duties and in the exercise of such powers, observe
and comply with all lawful resolutions and directions from time to time
given by the Board;
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3.1.3
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keep
the Board promptly and duly informed (in writing if so requested) of the
business and affairs of the Company and such other companies in the Group
as the Director may be involved with, whether in accordance with clause
3.1.4 or otherwise, and of his conduct and provide such explanation as the
Board may require in connection
therewith;
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3.1.4
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in
pursuance of his duties hereunder accept such offices in any other
companies in the Group (without further remuneration unless otherwise
agreed) as the Board; and
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3.1.5
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well
and faithfully serve the Group and use his reasonable endeavours to
promote and develop the business and interests of the
Group.
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3
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3.2
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The
Director acknowledges that, for the purposes of the Working Time
Regulations 1998, his working time is unmeasured and that he falls within
regulation 20 of the WTR and that therefore the provisions in those
Regulations regarding maximum hours of working time, daily rest, weekly
rest or rest breaks do not apply to the
Director.
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3.3
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The
Director shall promptly disclose to the Board any information which comes
into his possession which affects adversely or may affect adversely the
Company or any Associated Company or any of their respective businesses.
Such information shall include but shall not be limited
to:
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|
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3.3.1
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the
plans of any employee to leave the Company (whether alone or in concert
with other employees);
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3.3.2
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the
plans of any employee (whether alone or in concert with other employees)
to join a competitor or establish a business in competition with the
Company or any Associated Company;
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3.3.3
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any
steps taken by any employee to implement any plans mentioned in clauses
3.3.1 or 3.3.2;
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3.3.4
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the
misuse by any employee of any confidential information belonging to the
Company or any Associated Company.
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4
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Period
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4.1
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The
Director’s employment under this agreement shall commence on the
Commencement Date and shall continue for an initial period of 12 months
and thereafter until determined by at least 3 months’ written notice given
by either party to the other, such notice period to commence only after
the expiry of that initial period of 12
months.
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4.2
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Notwithstanding
clause 4.1, this agreement shall automatically terminate when the Director
reaches age 65.
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4.3
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The
Director’s employment with Digitech Projects Limited from
 to shall count
towards the Director’s continuous period of employment with the
Company. |
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4.4
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The
Company may, at its entire discretion, lawfully terminate this agreement
with immediate effect by giving notice of such termination and by paying
to the Director, in lieu of salary and other benefits pursuant to this
agreement, an amount equal to the salary which the Director would have
earned from the Termination Date until the first date upon which his
employment could, apart from this clause 4.4 have been lawfully terminated
in accordance with clause 4. 1 above together with a further sum
equivalent to the cost to the Company of the provision value of the
benefits to which the Director would have been entitled during such
period, to the extent only that the Director does not in fact receive
those benefits for the whole or part of such period. Any such payment to
the Director will be subject to tax and other statutory deductions
required from time to time.
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4
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4.5
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If
this agreement is terminated by notice given by either party to the other,
whether pursuant to clause 4.1 or otherwise, or if the Director wishes to
resign with immediate effect but the Company refuses to accept such
resignation and requires the due period of notice to be given by the
Director, then:
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4.5.1
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the
Company shall be under no obligation to vest in or assign to the Director
any powers or duties or to provide work for the Director but the Company
may at its discretion provide suitable work for the Director to be
undertaken at the Director’s home and the Company may require the Director
to carry out special duties or
projects;
|
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4.5.2
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the
Company may at any time or from time to time during such notice
period deny
the Director access to any premises of any company in the Group or require
the Director not to have any business contact or dealings with any
customer, client, supplier or employee of the Group;
and
|
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4.5.3
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salary
and all benefits will not cease to be payable or available to the Director
by reason only of that exclusion of the Director from any premises of any
company in the Group until the expiration of such notice
period.
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5
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Directorship
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5.1
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The
Director shall not be entitled to any director’s fees from any company in
the Group in addition to his remuneration under clause
7.
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5.2
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If
the Director ceases to be a director of the Company his employment on the
terms of this agreement (save as to job title which shall upon such
cessation be deemed to have become Director of Engineering) shall continue
unless the Company exercises its right under clause
19.1.9.
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6
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Place
of Work
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6.1
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The
Company shall provide a suitable office for the use of the Director at the
Company’s premises at Regent House, Heaton Lane, Stockport, Cheshire and
the Director shall carry out his duties there and in such other places as
the Board considers
reasonably appropriate from time to time. The Director may be required to
travel on the business of the
Company.
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7
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Remuneration
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7.1
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The
Director shall be entitled to remuneration for his services hereunder at
the rate of £35,000 per annum as from the Commencement Date which shall
accrue from day to day payable monthly in
arrears.
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5
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7.2
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On
every Review Date during the continuance of this agreement the
remuneration of the Director payable under this clause 7 shall be reviewed
by the Board but there shall be no obligation on the Board to effect any
increase.
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7.3
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For
the purpose of the Employment Rights Act 1996 and otherwise the Director
hereby consents to the deduction of any sums owing by the Director to the
Company at any time from his salary or any other payment or payments due
from the Company to the Director hereunder or otherwise and the Director
hereby also agrees to make any payment to the Company of any sums owed by
the Director to the Company upon demand by the Company at any
time.
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7.4
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Payment
of salary to the Director shall be made either by the Company or by any
other member of the Group and, if by more than one company, in such
proportions as the Board may from time to time think
fit.
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7.5
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Any
other benefit provided by or paid for by the Company to or for the
Director and not referred specifically to in this agreement is wholly
discretionary and at any time and from time to time without any
requirement for prior consultation and without any obligation to provide
any alternative or pay any compensation the Company may withdraw or
suspend any such benefit or the terms on which it is made
available.
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8
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Expenses
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In
addition to his remuneration hereunder the Director shall be reimbursed all
reasonable expenses properly incurred by him in the discharge of his duties
hereunder upon production of appropriate written evidence thereof if reasonably
practicable.
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9
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Motor
Vehicle
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The
Director shall be entitled to receive an allowance of £350 per calendar month in
respect of a motor vehicle.
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10
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Pension
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There is
no contracting out certificate in force in respect of the Director’s employment
under this agreement.
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11
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Holidays
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11.1
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The
Director shall be entitled during every calendar year (which is his leave
year for the purposes of the WTR) of his employment (and pro rata for part
of such year) to:
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11.1.1
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all
generally observed UK public holidays;
and
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11.1.2
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25
days each year at such time as shall reasonably be agreed by the Board.
The Director acknowledges Regulation 15(1) of the WTR is
excluded.
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6
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11.2
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The
Director shall be entitled to carry forward from one year to the next a
maximum of five days’ unused holiday entitlement but no payment will be
made by the Company in lieu of accrued but unused holiday entitlement at
the end of the holiday year.
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11.3
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For
the calendar year in which the Director’s employment commences or
terminates the Director is entitled to holidays during that year assessed
on a pro-rata basis. On the termination of the Director’s employment the
Director shall either be entitled to pay in lieu of outstanding holiday
entitlement or be required to repay to the Company any salary received for
holiday taken in excess of his actual entitlement (as the case may be).
The basis for payment shall be 1/261 salary for each day. The sum (if any)
the Director is entitled to receive under this clause satisfies his
entitlement to compensation under Regulation 14 of the
WTR.
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12
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Incapacity
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12.1
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Subject
as hereinafter provided, during any period of absence from work due to
illness or disability the Director shall continue to be entitled to his
full remuneration for a period of 26 weeks in each calendar year subject
to deduction Of statutory sick pay.
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12.2
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If
the Director is absent from work as a result of illness or disability, he
will:
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12.2.1
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notify
the Company as soon as practicable on the first day of his
absence;
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12.2.2
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if
the period of absence is less than eight consecutive days, submit to the
Company on his return a certificate of sickness completed by himself;
and
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12.2.3
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if
the period of absence is eight consecutive days or more, submit to the
Company without delay a medical certificate signed by a practising medical
practitioner in respect of each week of absence after the
first.
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12.3
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If
the Director shall at any time be incapacitated or prevented by mental or
physical illness, injury, accident or any other circumstances beyond his
control from performing his duties hereunder for a period of 6 consecutive
months or if he shall be so incapacitated at different times for more than
6 months in any one period of 52 consecutive weeks then in either of such
cases the Company shall be at liberty
thereafter:
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12.3.1
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to
terminate his employment by 6 months’ notice in writing and the Director
shall not be entitled to claim any compensation from the Company or any
other company in the Group or otherwise in respect of such termination and
provided further that if at any time during the currency of such a notice
the Director shall provide a medical certificate satisfactory to the Board
to the effect that he has fully recovered his physical and/or mental
health and that no recurrence of the illness or incapacity can reasonably
be anticipated, the Company shall withdraw the notice;
and/or
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7
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12.3.2
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to
discontinue payment in whole or part of his remuneration on and from such
date as it specifies in the notice until such time as he shall be capable
of performing and shall have resumed his full duties
hereunder.
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12.4
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If
the Director’s absence from work as a result of illness or disability
shall be or appear to be occasioned by the actionable negligence of a
third party in respect of which damages are or may be recoverable, then
all sums paid by the Company in accordance with this clause 12 shall
constitute loans to the Director, who
shall:
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12.4.1
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forthwith
notify the Company of the relevant circumstances and of any claim,
compromise, settlement or judgment made or awarded in connection
therewith;
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12.4.2
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give
to the Company all such particulars of such matters as the Company may
reasonably require; and
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12.4.3
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if
any damages are recovered from the third party refund to the Company such
sum as the Company may determine, not exceeding the lesser
of:
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(a)
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the
amount of damages recovered by the Director under such compromise,
settlement or judgment; and
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(b)
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the
sums advanced to the Director in respect of the period of the incapacity,
provided that, in the event that the Director shall be a director of the
Company or the Company’s holding company, the Director shall not be
entitled to receive any payments in excess of the maximum aggregate sum
permitted to be loaned by the Company
to a director under the provisions of Companies Act
1985.
|
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12.5
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The
Director shall at the expense of the Company submit as and when required
and from time to time to medical examination by a registered medical
practitioner nominated by the Company and shall authorise such medical
practitioner to disclose to and discuss with the Company’s medical adviser
the results of the examination and the matters which arise from it so that
the Company’s medical adviser can notify the Company of any matters he
considers might impair the Director from properly discharging his duties.
The Director shall consent to and authorise the release of all his medical
records for the purpose.
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13
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Other
Interests
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13.1
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The
Director shall not without the prior written consent of the Board during
the continuance of this agreement be concerned, engaged or interested
either directly or indirectly in any capacity in any other trade, business
or employment or engaged in any occupation (including membership of
parliament or of any local government authority or public body or any
other public or private work) provided that, other than any shares held in
the Company, the Director shall be permitted to hold not more than 3% of
any class of shares or debentures or other securities (other than shares,
debentures or other securities of the Company) which are quoted or dealt
on the Official List or the Alternative Investment Market of the London
Stock Exchange or any other recognised investment exchange (as defined in
section 207 of the Financial Services Act 1986) whether in the United
Kingdom or otherwise and shall be permitted to invest in the units of any
collective investment scheme (as defined in section 75 of the Financial
Services Act 1986) or Business Expansion Scheme or similar
fund.
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8
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13.2
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Subject
to any regulations issued by the Company which may be applicable to him,
the Director shall not be entitled to receive or obtain directly or
indirectly any discount, rebate or commission in respect of any sale,
purchase or provision of goods or services effected or other business
transacted (whether or not by him) by or on behalf of any company in the
Group 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 (for itself or on behalf of the relevant company in the Group, as
appropriate) 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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13.3
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The
Director shall comply with all codes of conduct from time to time adopted
by the Board and with all applicable rules and regulations of the London
Stock Exchange including the AIM Model Code for Securities Transactions by
Directors of Listed Companies.
|
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14
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Secrecy
|
The
Director shall not, except as authorised or required by his duties or as obliged
by law, reveal to any person or use for his own purposes or for any purposes
other than those of the Group any of the trade secrets, secret or confidential
operations, processes or dealings or any information concerning the
organisation, prospective business, business methods, systems or affairs,
finances, transactions or affairs of any company in the Group, or any similar
information in relation to any customer or supplier of the Group, which may come
to his knowledge during and as a result of his employment and shall keep with
complete secrecy all confidential information entrusted to him and shall not use
or attempt to use any such information in any manner which may injure or cause
loss either directly or indirectly to any company in the Group or their
respective businesses or which may be likely so to do. This restriction shall
continue to apply after the termination of this agreement without limit in point
of time but shall cease to apply to information or knowledge which is ordered to
be disclosed by a Court of competent jurisdiction or otherwise required to be
disclosed by law or which comes into the public domain other than as a result of
a breach by the Director of his obligations to the Company or any other company
in the Group or where disclosure is permitted in accordance with the Public
Incorrect Disclosure Act 1998.
|
15
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Notes
or Memoranda
|
The
Director shall not during the continuance of this agreement make, otherwise than
for the benefit of the Group, any notes or memoranda relating to any matter
within the scope of the business of the Group or concerning any of its dealings
or affairs, nor shall the Director either during the continuance of this
agreement or afterwards use or permit to be used any such notes or memoranda
otherwise than for the benefit of the Group. All such notes and memoranda made
by the Director shall be the property of the Group and shall be left at the
registered office of the Company upon the termination of the Director’s
employment.
9
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16
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Inventions
|
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16.1
|
Any
discovery, development, invention, process, design, improvement in
procedure, computer program, copyright works, trade name or trade mark
made, discovered or created by the Director during the period of this
agreement either alone or with any other person in connection with or in
any way affecting or relating to the business of the Group or capable of
being used or adapted for use therein or in connection therewith
(“Inventions”) shall forthwith be disclosed by the Director to the Company
and shall belong to and be the absolute property of the Company or such
Associated Company as the Company may nominate for that purpose provided
that this clause 18.1 shall not apply to those rights of the Director in
Inventions which cannot under applicable law be vested in the Company as
his employer (“Employee Rights”).
|
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16.2
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The
Director, if and whenever required to do so (whether during or after the
termination of his appointment), shall at the expense of the Company
forthwith assign to the Company or an Associated Company nominated by the
Company (or, if assignment is not permitted under applicable law, shall
grant an exclusive licence to the Company or such Associated Company) all
Employee Rights and upon such assignment or licensing shall deliver to the
Company or such Associated Company all documents and other materials
relating to the Inventions and the Company will itself or will procure
that such Associated Company will thereupon pay to the Director such
remuneration for the assignment or licence and the delivery of the said
documents and materials as may be agreed or in default of agreement such
remuneration as may be determined pursuant to an application by the
Director under section 40 of the Patents Act
1977.
|
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16.3
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The
Director if and whenever required to do so (whether during or after the
termination of his appointment) shall at the expense of the Company or its
nominee:
|
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16.3.1
|
apply
or join in applying for patents, registered designs, trade marks or other
similar protection in the United Kingdom or any other part of the world
for any Inventions and execute all instruments and do all things necessary
for vesting the said patents, registered designs, trade marks or other
similar protection when obtained and all right and title to and interest
in the same in the Company or such other third party as the Company may
require absolutely and as the sole beneficial owner;
and
|
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16.3.2
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sign
and execute all such documents and do all such acts as the Company may
reasonably require in connection with any proceedings in respect of such
applications and any petitions or applications for revocation of such
patents, registered designs, trade marks or other
protection.
|
10
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16.4
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The
Director hereby irrevocably appoints the Company to be his attorney to act
in his name and on his behalf to execute and do any such instrument or
thing and generally to use his name for the purpose of giving to the
Company the full benefit of this clause and a certificate in writing
signed by any director or by the secretary of the Company that any
instrument or act falls within the authority hereby conferred shall be
conclusive evidence that such is the case as against the Director in
favour of the Company and any third
party.
|
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16.5
|
Should
the Company, in its sole discretion, so require, the Inventions shall not
be made the subject of patents or similar protections, but shall be worked
by the Company and/or the Associated Companies as secret
processes.
|
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17
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Termination
|
|
17.1
|
The
Company may (without prejudice to any other rights or remedies in respect
thereof) forthwith determine the employment of the Director without
compensation by notice in writing to him in any of the following
circumstances:
|
|
17.1.1
|
the
Director breaches any material term of this agreement and which, in the
case of a breach capable of remedy, is not so remedied within 30 days of a
written notice from the Board so to
remedy;
|
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17.1.2
|
the
Director neglects, omits or refuses to discharge his duties hereunder or
to comply with any proper and reasonable instruction given to him by the
Board;
|
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17.1.3
|
the
Director is guilty of gross or persistent misconduct or shall be guilty of
conduct likely to bring himself or any member of the Group into
disrepute;
|
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17.1.4
|
the
Director is convicted of a criminal offence other than an offence which,
in the opinion of the Board, does not affect his position as a director of
the Company nor destroy the Company’s trust and confidence in
him;
|
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17.1.5
|
the
Director is declared bankrupt or an interim order is made against him or
he makes or attempts to make any voluntary arrangement with his
creditors;
|
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17.1.6
|
it
is determined that any of the representations and warranties set forth in
clause 26 hereof shall have been untrue when
made;
|
|
17.1.7
|
a
disqualification order is made or is in force against the Director under
the Company Directors’ Disqualification Act
1986;
|
|
17.1.8
|
the
Director becomes of unsound mind or becomes a patient as defined in the
Mental Health Act 1983;
|
|
17.1.9
|
the
Director ceases to be a director of the Company for any
reason.
|
11
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17.2
|
On
the termination of this agreement or on either the Company or the Director
having served notice of such termination the Director shall upon the
request of the Company:
|
|
17.2.1
|
resign
without compensation from all directorships and other offices held by him
in the Group;
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17.2.2
|
sign
or execute such transfers or other deeds or documents as may be required
to transfer to the Company or as it may direct any shares or other
securities held by the Director as nominee or trustee for the Company (or
any other company in the Group);
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17.2.3
|
deliver
to the Company forthwith all credit cards, motor car, car keys and other
property of or relating to the business of the Company or the Group
(including any notes or memoranda referred to in clause 15) which may be
in his possession or under his control;
and
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17.2.4
|
for
the purposes of clauses 17.2.1, 17.2.2 and 17.2.3 the Director hereby
irrevocably appoints the Company to be his attorney to act in his name and
on his behalf to execute and do any such instrument or thing and generally
to use his name for the purpose of giving to the Company the full benefit
of this clause and a certificate in writing signed by any director or by
the secretary of the Company that any instrument or act falls within the
authority hereby conferred shall be conclusive evidence that such is the
case as against the Director in favour of the Company and any third
party.
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17.3
|
The
Director shall not at any time after the termination of his employment
falsely represent himself as being in any way connected with the business
of the Company or any other company in the
Group.
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|
18
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Suspension
|
If the
Board have reason to suspect that any one or more of the events set out in
clauses 17.1.1 to 17.1.9 (inclusive) of this agreement has or have occurred the
Board may suspend the Director on such terms as to payment of salary or
otherwise as the Board may think fit pending further investigations for so long
as may be necessary to carry out such investigation.
12
|
19
|
Non-Competition
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|
19.1
|
The
Director shall not so as to compete with the Company during the period of
12 months after the Termination Date directly or indirectly on his own
account or on behalf of or in conjunction with any person, firm or company
or other organization canvass or solicit or by any other means seek to
conduct Prohibited Business with or conduct Prohibited Business with any
Restricted Customer with whom the Director shall have had material
dealings in the course of his duties hereunder at any time in the Relevant
Period or with whom and to the knowledge of the Director any employee of
the Company under the Director’s control shall have had material dealings
in the course of their duties to the Company in the Relevant
Period.
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|
19.2
|
The
Director shall not so as to compete with the Company during the period of
12 months after the Termination Date directly or indirectly on his own
account or on behalf of or in conjunction with any person, firm or company
or other organisation canvass or solicit or by any other means seek to
conduct Prohibited Business with or conduct Prohibited Business with any
Prospective Customer with whom the Director shall have had material
dealings in the course of his duties hereunder at any time in the Relevant
Period or with whom and to the knowledge of the Director any employee of
the Company under the Director’s control shall have had material dealings
in the course of their duties to the Company in the Relevant
Period
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|
19.3
|
The
Director shall not so as to compete with the Company during the period of
12 months after the Termination Date directly or indirectly induce or seek
to induce any senior employee of the Company engaged in the Prohibited
Business who was such an employee at the Termination Date and with whom
the Director shall during the Relevant Period have had material dealings
in the course of his duties hereunder to leave the employment of the
Company whether or not this would be a breach of contract on the part of
the employee.
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|
19.4
|
The
Director shall not so as to compete with the Company during the period of
12 months after the Termination Date directly or indirectly seek to entice
away from the Company or otherwise solicit or interfere with the
relationship between the Company and any Protected
Supplier.
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|
19.5
|
The
Director shall not so as to compete with the Company during the period of
12 months after the Termination Date within the Territory carry on or be
directly or indirectly engaged, concerned or interested whether as
principal, agent, substantial shareholder, substantial investor, director,
employee, consultant or otherwise howsoever in any business or the setting
up of any business engaged in or which it is intended to be engaged in any
Prohibited Business. For the purpose of this clause 19.5 acts done by the
Director outside the Territory shall nonetheless be deemed to be done
within the Territory where their primary purpose is the obtaining of any
Prohibited Business from any person, firm, company or other entity with
business premises within the
Territory.
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13
|
19.6
|
The
Director covenants that in respect of any other company in the Group in
the business or affairs of which the Director shall at any time during the
Relevant Period have been materially concerned or interested he will
perform and observe in relation to each such Associated Company the
covenants set out in this clause 19 and that each covenant shall be
construed and enforceable as a separate covenant in relation to each such
Associated Company. For the purposes of giving effect to the provisions of
this clause 19.6 only, references to the Company in clauses 19.1 to 19.5
inclusive and in the definitions of Prohibited Business, Prospective
Customer, Protected Supplier and Restricted Customer shall be deemed to be
references to each such company.
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|
19.7
|
The
Director shall not, either during the continuance of this agreement or at
any time after the Termination Date engage in any trade or business or be
associated with any person, firm or Company engaged in any trade or
business using the names “Malin”, “Digitech” or “Image Metrics” or
incorporating any such words.
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|
19.8
|
These
restrictions are entered into by the Company and the Director after having
been separately legally advised.
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|
19.9
|
Each
of these restrictions contained in this clause 19 is intended to be
separate and severable. In the event that any of the restrictions shall be
held void but would be valid if part of the wording thereof were deleted
such restriction shall apply with such deletion as may be necessary to
make it valid and effective.
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|
20
|
Amalgamation
or Reconstruction
|
If before
the termination of this agreement the employment of the Director shall be
determined by reason of the winding up of the Company for the purposes of
reconstruction or amalgamation and the Company shall procure that any concern or
undertaking resulting from such solvent reconstruction or amalgamation shall
offer to the Director employment on no less favorable terms than contained in
this agreement, the Director shall have no claim against the Company for damages
or otherwise in connection with such determination provided that, in the event
of the Director being made such an offer, it shall be conditional upon his
employment with the Company counting as continuous employment within the meaning
of the Employment Rights Act 1996.
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21
|
Grievance
and Discipline
|
|
21.1
|
The
Director should refer any grievances about his employment or about any
decision relating to him to the Board by giving written notice. The
reference will be dealt with by a majority present at the relevant Board
meeting and whose decision shall be
final.
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|
21.2
|
There
are no disciplinary rules relating to the Director’s
employment.
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14
|
22
|
Collective
Agreements
|
No
collective agreements affect the Director’s terms and conditions of employment
with the Company.
|
23
|
Notices
|
|
23.1
|
Any
demand, notice or communication shall be deemed to have been duly
served:
|
|
23.1.1
|
if
delivered by hand, when left at the proper address for
service;
|
|
23.1.2
|
if
given or made by prepaid first class post, 48 hours after being posted
(excluding Saturdays, Sundays, and public
holidays),
|
provided
that where in the case of delivery by hand such delivery occurs either after
4.00pm on a Business Day or on a day other than a Business Day service shall be
deemed to occur at 10.00am on the next following Business Day (such times being
local times at the address of the recipient).
|
23.2
|
Any
demand, notice or communication shall be made in writing addressed to the
recipient at its registered office or its address stated in this agreement
(or such other address as may be notified in writing from time to
time).
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|
24
|
Breach
Prior to Termination
|
The
expiration of or the lawful termination of this agreement shall not affect such
other provisions hereof as are expressed to operate or have effect thereafter
and shall be without prejudice to any right or action already accrued to either
party in respect of any breach of this agreement by the other
party.
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25
|
Prior
Agreements
|
As from
the Commencement Date, this agreement will govern the employment relations
between the Company and the Director and any former agreements subsisting
between the Director and the Company or any other company in the Group in
respect of such employment relationship will thereafter cease to be of
effect.
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26
|
Representation
|
|
26.1
|
The
Director represents and warrants to the Company that he is free to enter
into this agreement and that he is not bound by any court order, agreement
or arrangement which would prevent him from entering into this agreement
or which would restrict the availability of his services to the
Group.
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|
26.2
|
The
Director hereby agrees to indemnify the Company fully against any and all
liabilities, damages, costs and expenses, including without limitation,
legal fees and disbursements incurred by the Company in connection with
any action, suit or proceedings brought against the Company concerning the
subject matter of clause 26.1.
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15
|
27
|
Proper
Law and Jurisdiction
|
This
agreement shall be governed by and construed in accordance with English law and
each of the parties hereto submits to the non-exclusive jurisdiction of the
English Courts.
This
agreement has been executed as a deed and is delivered on the date stated at the
beginning of this agreement.
16
|
EXECUTED AS A
DEED
|
)
|
|
|
By
IMAGE
METRICS PLC
|
)
|
|
|
acting
by:
|
)
|
|
Director:
|
 |
|
Director/Secretary:
|
 |
|
EXECUTED
AS A DEED
by
KEVIN
WALKER
in
the presence of:
|
)
)
)
|
 |
Signature:
Name:
STEVEN DURNING
Address:
FLAT 215, THE GRAND APTS, 1 AYTOUN ST
MANCHESTER, MI 30A
Occupation:
PROJECT MANAGER
17