Teltronics Limited - and - Duncan Anderson EMPLOYMENT AGREEMENT
Exhibit
10.46
| DATED: |
August 13th
2001
Amended March 1st
2005
|
Teltronics
Limited
- and
-
Xxxxxx
Xxxxxxxx
__________________________________
__________________________________
THIS
AGREEMENT is made on the 13th day
of August
2001.
B
E T W E E N:
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(1)
|
and
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(2)
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Xxxxxx
X. Xxxxxxxx,
00 Xxxxxx Xxxx, Xxxxx, Xxxxxxxxxxxxxxx MK465BD (the
“Employee”)
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IT IS
HEREBY AGREED as follows:
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1.
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Appointment
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The
Company appoints the Employee and the Employee agrees to serve the Company as in
the position of Managing Director on and subject to the terms and conditions
specified herein (the “Employment”).
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2.
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Commencement
of Employment
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2.1
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The
Employment will commence with effect from August 13, 2001 (the
"Commencement Date") and, subject to Clause 20 below, shall continue
thereafter until terminated by not less than twelve (12) months’ prior
written notice given by either party to the
other.
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2.2
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The
Employee’s period of continuous employment with the Company began on
August 13, 2001.
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3.
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Duties
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3.1
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The
Employee shall be employed in the post of Managing Director or in such
other capacity as the Company may from time to time reasonably
require. The Employee will report directly to the President and
CEO of the Company. The Employee’s responsibilities will
include such duties as are in the reasonable opinion of the Company
appropriate to and consistent with the post of Managing Director or in the
event of a change in the capacity in which the Employee is employed by the
Company pursuant to this Clause 3.1, such new capacity. The
Employee will be expected to carry out the duties assigned under this
Employment Agreement in a proper, loyal and efficient manner and to use
best endeavours to promote the interests and reputation of the Company and
to do nothing which could be considered as harmful to the Company. The
Employee shall obey the reasonable and lawful orders of the Company, given
by or with the authority of the Company’s Board of Directors, and shall
comply with all the Company’s rules, regulations, policies and procedures
from time to time in force.
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3.2
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The
Employee accepts that the Company may, at its discretion, assign to the
Employee other duties or tasks not within the scope of the Employee’s
normal duties, (including, without limitation, the carrying out of
specific projects unrelated to the Employee’s normal duties), in addition
to, or in place of, the Employee’s
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-1-
| normal duties, it being understood that no duties will be assigned to the Employee which the Employee cannot reasonably perform. |
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3.3
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The
Employee may be required in pursuance of the duties assigned under this
Employment Agreement to perform services for any Associated Company and,
without further remuneration (except as otherwise agreed), to accept any
such position in any Associated Company which is consistent with the
Employee’s position with the Company, as the Company may from time to time
reasonably require. The Company may at its sole discretion
assign the Employment to any Associated Company on the same terms and
conditions as set out herein.
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3.4
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The
Company hereby reserves the right, from time to time, to appoint any other
person or persons to act jointly with the Employee in this appointment and
to appoint any other person or persons to act in a capacity senior to the
Employee.
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4.
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Hours
of Work
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4.1
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The
Employee will normally be required to work forty (40) hours per week on an
eight (8) hours per day basis Monday to Friday. However, in
accordance with the provisions of Clause 20.4, the Company has the right
to require the Employee to remain away from work on full pay and on such
conditions as the Company may
specify.
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4.2
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When
deemed necessary by the Company, the Employee will also be expected to
work outside and beyond normal hours, including weekends and/or holidays,
and no extra payment will be made for such work. The Employee
hereby agrees that the forty-eight (48) hour limit under the Working Time
Regulations 1998 (as amended) will not apply to the Employee unless or
until the expiry of three (3) months’ written notice from the Employee to
the Company to terminate this
arrangement.
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5.
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Exclusivity
of Service
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5.1
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During
the Employment, the Employee will be expected to devote the Employee’s
full time and attention to carrying out the duties assigned under this
Employment Agreement and the Employee shall not (without the prior written
consent of the Company) during the Employment directly or indirectly
engage or be interested in, be concerned with, or provide services to, any
other person, company, business entity or other organisation whatsoever
(whether as an employee, officer, director, agent, partner, consultant or
otherwise) SAVE AS provided in Clause 3.3 above, and SAVE FURTHER THAT the
Employee may hold up to 5% of any securities in a company which is quoted
on any Recognised Investment Exchange (as defined in Section 207 of the
Financial Services Xxx 0000 or any equivalent provision under any
superseding legislation).
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5.2
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The
Employee hereby warrants that the Employee has fully disclosed in writing
to the Company as set forth in Schedule II all circumstances in respect of
which there is, or might be, a conflict of interest between the Company
and/or any Associated Company and the Employee and/or the Employee’s
Immediate Relatives, and the Employee further agrees to disclose fully in
writing to the Company any such circumstances which may arise during the
Employment.
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6.
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Remuneration
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As
compensation for the services to be provided by the Employee under this
Employment Agreement, the Employee will be remunerated as follows:
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6.1
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The
Employee’s basic salary will be £UK 90,000 per annum. This will be paid in
equal monthly instalments in arrears by credit transfer into the
Employee’s bank or building society account on or about the 28th day of
each month. The Company will review the Employee’s salary
annually with effect from the anniversary of the Commencement Date each
year without any undertaking by the Company that the Employee’s salary
will be automatically increased as a consequence of such
review.
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6.2
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The
Employee will be entitled to participate in the Company’s Sales
Compensation Plan (“the Plan”) in accordance with the terms of the Plan as
from time to time apply. The Employee will be entitled to a
maximum target remuneration of £UK 60,000 Amount under the Plan
conditional upon individual and EMEA region sales objectives being
met. The terms of participation in the Plan shall be determined
by the Company in its sole discretion and are available on request from
the Company. The Company reserves the right to amend or
terminate the Plan without notice at any time or to exclude the Employee
from participation in the Plan without giving any
reason.
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7.
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Expenses
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The
Company shall reimburse to the Employee all reasonable business expenses
properly incurred and defrayed by the Employee in the proper performance of the
Employee’s duties in accordance with the Company’s rules and policies relating
to expenses provided that, on request, the Employee will provide the Company
with such vouchers, receipts or other satisfactory evidence of actual payment of
such expenses as the Company may, in its sole discretion, reasonably
require.
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8.
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Deductions
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The
Company shall be entitled at any time during the Employment, and in any event on
termination thereof (howsoever arising) to deduct from any payment owed to the
Employee by the Company (including, without limitation, salary, payment in lieu
of notice, any bonus or the like) any monies due from the Employee to the
Company, including but not limited to any outstanding loans, advances,
relocation expenses, overpayments, training costs, the cost of repairing any
damage to the Company’s property caused by the Employee and any loss suffered by
the Company as a result of the Employee’s negligence or breach of Company rules
(including the cost of recovering the same), excess holiday, any sums due under
Clause 11 below and any other monies from time to time owed by the Employee to
the Company.
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9.
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Stock
Options
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The
Employee shall be granted 20,000 stock options in accordance with the terms of
Teltronics, Inc.’s stock option plan.
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10.
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Place
of Work
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10.1
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The
Employee’s normal place of work will be home based at the address above,
although the Company reserves the right to change the Employee’s normal
place of work upon one (1) month’s notice to any place in the
United Kingdom.
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10.2
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The
Employee may be required to work at any of the Company’s premises or at
the premises of its customers, clients, suppliers or of any Associated
Company within the United Kingdom from time to time. The
Employee will be reimbursed for any expenses properly incurred in
connection with such duties in accordance with the Company’s rules and
policies relating to expenses from time to
time.
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10.3
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In
the performance of the Employee’s duties hereunder, the Employee may be
required to travel both within and outside the
United Kingdom. The Employee’s duties will not ordinarily
require the Employee to work outside the United Kingdom for a period of
more than one month.
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11.
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Sickness
Benefits
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11.1
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In
case of sickness or other incapacity for work, the Employee must comply
with the Company’s rules, from time to time in force, regarding sickness
notification and the provision of doctor’s certificates, details of which
can be obtained from the Company.
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11.2
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The
Company reserves the right to require the Employee, at the Company’s
expense, to undergo a medical examination by a doctor or consultant
nominated by the Company and to cease payment of Company Sick Pay if it is
advised by such doctor that the Employee is fit to return to
work.
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11.3
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On
condition that the Employee has complied with the Company’s rules referred
to at Clause 11.1 above and that the payment of Company Sick Pay has not
been ceased in accordance with Clause 11.2, the Employee will be entitled
to Company Sick Pay up to a maximum of three (3) months’
full pay per annum and subject to review by the Company
thereafter.
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11.4
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When
calculating the Employee’s pay for the purpose of Company Sick Pay,
deductions will be made for any State sickness or other benefits
recoverable by the Employee in connection with such sickness or
incapacity, as well as normal deductions for tax and National
Insurance.
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11.5
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In
addition to Company Sick Pay, the Employee will be paid Statutory Sick Pay
(“SSP”) when eligible to receive it in accordance with current
legislation. Where Company Sick Pay and SSP fail to be paid for
the same day(s) of absence, the Employee will receive the higher of the
two sums. Further details regarding SSP can be obtained from
the Company.
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11.6
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In
the event that, during the Employment, the Employee is absent from work on
grounds of sickness or other medical incapacity the Employee’s entitlement
to the payment by the Company of pension contributions, participation in
any incentive or bonus scheme and (to the extent permitted by law) accrual
of holiday entitlement,
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-4-
| shall cease on the expiry of the relevant period of the Employee’s entitlement to Company Sick Pay as set out in Clause 11.3 above. |
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11.7
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Any
outstanding or prospective entitlement to Company Sick Pay shall not
prevent the Company from exercising its right to terminate the Employment
in accordance with Clauses 2 or 20
hereof.
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11.8
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If
any illness, accident or other incapacity of the Employee is, or appears
to be, caused by the actionable negligence of a third party in respect of
which damages are or may be recoverable, the Employee shall immediately
notify the Company of that fact and of any claim, compromise, settlement
or judgement made or awarded in connection with it. The
Employee hereby agrees to provide to the Company all particulars which the
Company may reasonably request in relation to the same and will, if
requested by the Company, refund all or such part of the sums paid to or
for the benefit of the Employee by the Company by way of salary, bonus or
benefits during the period of the Employee’s illness, accident or
incapacity as the Company may reasonably determine. Any such
amount to be refunded by the Employee shall not exceed the amount of
damages or compensation (and interest thereon) recovered by the Employee,
less any unrecovered costs borne by the Employee in connection with the
recovery of such damages or compensation, and shall not exceed the total
remuneration paid to the Employee by way of salary, bonus and benefits in
respect of the period of such illness, accident or other
incapacity. Any rights of the Company pursuant to this Clause
11.8 shall be without prejudice to the Employee’s entitlement to SSP in
accordance with current
legislation.
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12.
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Holidays
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12.1
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The
Company’s holiday year runs from 1st January to 31st
December. In each holiday year the Employee will be entitled to
twenty five (25) days’ paid holiday. The Employee must give at least one
month’s notice of proposed holiday dates and these must then be agreed
with the person to whom the Employee immediately reports. The
Employee must not without the prior consent of the Company carry any
unused Company holiday entitlement forward to a subsequent holiday
year. The Employee will not be entitled to receive pay in lieu
of any unused holiday entitlement except in accordance with the following
Clause.
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12.2
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If
the Employee starts or leaves the Employment during a Company holiday
year, the Employee’s Company holiday entitlement in respect of that
Company holiday year shall be 2 days for each complete month of service in
that Company holiday year. Upon termination of the Employment,
the Employee will be:
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12.2.1
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entitled
to pay in lieu of any unused Company holiday entitlement, save to the
extent permitted by law where the Employment is terminated by the Company
in accordance with Clause 20; or
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12.2.2
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required
to pay to the Company pay received for holiday taken in excess of the
Employee’s accrued company holiday entitlement. Any sums so due
may be deducted from any money owing to the
Employee.
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12.3
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The
Company reserves the right to require the Employee to take any unused
holiday entitlement during the Employee’s notice period, even if booked to
be taken after the end of the notice
period.
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12.4
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For
the purpose of calculating any pay due to the Employee or owed by the
Employee to the Company in accordance with this Clause 12, one (1) day’s
pay shall be 1/253
of the Employee’s basic annual
salary.
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12.5
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In
addition to the Employee’s Company holiday entitlement, the Employee is
entitled to all public holidays normally observed in the United Kingdom
and will be paid for each such public holiday. The Company
reserves the right to require the Employee to work on a public holiday if
necessary for the proper performance of the Employee’s
duties.
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13.
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Acceptance
of Gifts
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The
Employee may not, without the prior written consent of the Company, accept
any gift and/or favour of whatever kind from any customer, client or
supplier of the Company or any prospective customer, client or supplier of
the Company.
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14.
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Pension
and Other Benefits
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14.1
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The
Employee will be eligible to participate in the Company’s pension scheme,
subject to the applicable taxation laws. Full details of such
scheme, will be available from the
Company.
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14.2
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There
is currently not in force a contracting-out certificate (issued in
accordance with Chapter I of Part III of the Pension Schemes Act 1993)
stating that the Employment is contracted out
employment.
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14.3
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The
Employee will have the benefit of a mobile telephone for use in connection
with the Employment. The Company will bear all expenses
incurred in connection with such telephone except for expenses incurred in
connection with the private use of the
same.
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15.
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Reasonableness
of Restrictions
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The Employee hereby
acknowledges that, in the course of performing the duties assigned under
this Employment Agreement, the Employee will have access to, and come into
contact with, trade secrets and confidential information belonging to the
Company and/or to Associated Companies and will obtain personal knowledge
of and influence over the customers and/or employees of the
same. The Employee accordingly agrees that the restrictions
contained or referred to in Clauses 16 and 19 and Schedule I are
reasonable and necessary to protect the legitimate business interests of
the Company and its Associated Companies, both during and after the
termination of the Employment.
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16.
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Confidentiality
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| 16.1 |
During
the Employment and at any time following the Termination Date, the
Employee hereby agrees:
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16.1.1
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not
without the prior written authorisation of the Company, to disclose the
Confidential Information directly or indirectly to any person, firm,
company or organisation, except as may be expressly required in performing
services for the Company, any Associated Company or any client or customer
of the Company or any Associated Company, and then only to persons within
the Company, the Associated Company or any client or customer of the
Company or any Associated Company who have a need to know the Confidential
Information;
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16.1.2
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not
to use or exploit the Confidential Information in any way other than as
expressly required in performing services for the Company or any
Associated Company;
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16.1.3
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not
without the prior written authority of the Company to remove from the
Company’s premises or copy or allow others to copy the contents of any
document, computer disk, tape or other tangible item which contains any
Confidential Information or which belongs to the Company or any Associated
Company;
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16.1.4
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to
return to the Company upon request and, in any event, at the Termination
Date, all documents, computer disks and tapes and other tangible items in
the Employee’s possession or under the Employee’s control which belong to
the Company or any Associated Company or which contain or refer to any
Confidential Information.
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16.2
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The
Employee shall not at any time during the continuance of the Employment
make any notes or memoranda relating to any matter within the scope of the
Company’s business, dealings or affairs otherwise than for the benefit of
the Company or any Associated
Company.
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16.3
|
The
obligations contained in Clause 16.1 will not apply to any disclosures
required by law, and such disclosure obligations shall cease to apply in
respect of any information or knowledge which may come into the public
domain, other than by way of unauthorised disclosure, following
termination of the Employment.
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16.4
|
The
Employee shall not make or communicate any statement (whether written or
oral) to any representative of the press, television, radio or other media
and shall not write any article for the press or otherwise for publication
on any matter connected with or relating to the business of the Company or
any Associated Company without obtaining the written approval of the
Company.
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17.
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Copyright,
Inventions and Patents
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17.1
|
The
Employee shall promptly disclose to the Company all copyright works or
designs originated (including, without limitation, laboratory or
production reports, manuals and related materials) conceived, written or
made by the Employee alone or with others during the Employment (the
“Works”) and shall hold them in trust for the Company until such rights
shall be fully and absolutely vested in the
Company.
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17.2
|
The
Employee hereby assigns to the Company by way of future assignment all
copyright, design right and other proprietary rights (if any) for the full
terms thereof throughout the world in respect of all
Works.
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17.3
|
The
Employee hereby irrevocably and unconditionally waives in favour of the
Company any and all rights conferred on the Employee (whether before, on
or after the date hereof) by Chapter IV of Part I of the Copyright,
Designs and Patents Xxx 0000 in connection with the authorship of any
Works during the course of the Employment, wherever in the world
enforceable, including without limitation the right to be identified as
the author of such Works and the right not to have such Works subjected to
derogatory treatment.
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17.4
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The
Employee acknowledges that, for the purpose of the proviso to section 2
(1) of the Registered Designs Xxx 0000 (as amended), the covenants on the
part of the Employee and the Company will be treated as good consideration
and the Company will be the proprietor of any design which forms part of
the Works.
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17.5
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The
Employee shall, at the request and expense of the Company, do all things
necessary or desirable to substantiate the rights of the Company to or in
respect of any Works.
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17.6
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The
Company and the Employee acknowledge and accept the provisions of Sections
39 to 42 of the Patents Xxx 0000 (the “Act”) relating to the ownership of
employees’ inventions and the compensation of employees for certain
inventions.
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17.7
|
The
Employee acknowledges and agrees that, by virtue of the nature of the
Employee’s duties and responsibilities under this Employment Agreement,
the Employee has a special obligation to further the interests of the
Company within the meaning of Section 39(1)(b) of the
Act.
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17.8
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If
at any time during the Employment the Employee (whether alone or with any
other person or persons) makes any improvement, invention or discovery
which relates either directly or indirectly to the business of the Company
or any Associated Company (“Invention”), the Employee shall promptly
disclose to the Company full details, including drawings and models, of
such Invention to enable the Company to determine whether or not it is a
Company Invention.
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17.9
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If
the Invention is a Company Invention, the Employee shall hold it in trust
for the Company and, at the request and expense of the Company, do all
things necessary or desirable to enable the Company or its nominee to
obtain for itself the full benefit of and to secure patent, registered
design or other appropriate forms of protection for the Company Invention
throughout the world and when so obtained or vested, to renew and maintain
the same.
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17.10
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With
respect to any rights in any Invention which is not a Company Invention
(collectively “Employee Rights”), the Employee will, at the request and
expense of the Company (and notwithstanding the termination of the
Employment) forthwith license or assign (as determined by the Company) to
the Company on an exclusive basis the Employee Rights and shall deliver
to the Company all documents and other materials relating to any such
Invention and, where appropriate, do all things necessary or desirable to
enable the Company or its nominee to obtain for itself
the
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| full benefit of and to secure patent, registered design or other appropriate forms of protection for the Company in respect of the same throughout the world and when so obtained or vested, to renew and maintain the same. The Company shall pay to the Employee such compensation for any such licence or assignment as the Company shall determine in its sole discretion, subject to Section 40 of the Act. |
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17.11
|
The
Employee irrevocably appoints the Company as attorney in the Employee’s
name and on the Employee’s behalf (and notwithstanding the termination of
the Employment) to execute documents, to use the Employee’s name and to do
all things which may be necessary or desirable for the Company to obtain,
renew and maintain for itself or its nominee the full benefit of the
provisions of Clauses 17.9 and 17.10 above and a certificate in writing
signed by any officer of the Company that any instrument or act falls
within the authority hereby conferred shall be conclusive evidence that
such is the case so far as any third party is
concerned.
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17.12
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The
Employee shall at the request and expense of the Company (and
notwithstanding the termination of the Employment) sign and execute all
such documents and do all such acts as the Company may reasonably
require:
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17.12.1
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to
contest any objection or opposition to the Company obtaining, and any
petitions or applications for revocation of any Company Invention or other
Invention licensed or assigned to the Company under this Clause
17;
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17.12.2
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to
bring any proceedings for infringement of any Company Invention or other
Invention licensed or assigned to the Company under this Clause 17;
and
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17.12.3
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otherwise
to give effect to the assignments, waivers or licences contemplated under
this Clause 17.
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17.13
|
Decisions
as to the patenting and exploitation of any Company Invention or other
Invention licensed or assigned to the Company under this Clause 17 shall
be at the sole discretion of the Company and the Company hereby reserves
the right to work any of such Inventions as a secret process in which
event the Employee shall observe the obligations relating to Confidential
Information which are contained in Clause 16 of this Employment
Agreement.
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18.
|
Data
Protection
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18.1
|
The
Employee acknowledges that the Company will hold personal data relating to
the Employee. Such data will include the Employee’s name,
employment application, address, references, bank details, performance
appraisals, work, holiday and sickness records, next of kin, salary
reviews, remuneration details and other records (which may, where
necessary, include sensitive data relating to the Employee’s health, and
data held for equal opportunities purposes). The Company will
hold such personal data for personnel administration and management
purposes and to comply with its obligations regarding the retention of
employee/worker records. The Employee’s right of access to such
data is as prescribed by law.
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18.2
|
The
Employee hereby undertakes and agrees that the Company may process
personal data relating to the Employee for personnel administration and
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management
purposes, and may, when necessary for those purposes, make such data
available to its advisors, to third parties providing products and/or
services to the Company, (such as IT systems suppliers, pension, benefits
and payroll administrators), to regulatory authorities (including the
Inland Revenue), and as required by law. Further, the Employee hereby
agrees that the Company may transfer such data to and from its Associated
Companies, both in the United Kingdom and in the United States of
America. By signing this Employment Agreement, the Employee
expressly consents to the collection, transfer and use of such data in
accordance with this Clause 18.
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19.
|
Post-Termination
Obligations
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19.1
|
The
Employee agrees to observe the post-termination obligations set out in
Schedule I hereto.
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19.2
|
The
Employee agrees that in the event of the Employee receiving from any
person, company, business entity or other organisation an offer of
employment either during the continuance of this Employment Agreement or
during the continuance in force of any of the restrictions set out in
Schedule I hereto, the Employee will forthwith provide to such person,
company, business entity or other organisation making such offer of
employment a full and accurate copy of this Employment
Agreement.
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20.
|
Termination
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20.1
|
Notwithstanding
Clause 2 above, the Company may terminate the Employment without notice
and without pay in lieu of notice in the event that the Employee is guilty
of serious misconduct. Conduct which justifies such termination
of the Employment shall include, but will not be limited to, the
following:
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20.1.1
|
the
Employee being guilty of dishonesty, gross misconduct, gross incompetence,
gross negligence, wilful neglect of duty or any other serious breach of
this Employment Agreement; or
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20.1.2
|
conduct
by the Employee (whether in the course of the Employee’s duties or
otherwise) which is likely to bring the Employee, the Company or any
Associated Company into disrepute or prejudice the interests of the
Company or of any Associated Company;
or
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20.1.3
|
the
Employee being, for an aggregate period of one hundred and twenty (120)
days or more in any period of twelve (12) consecutive months, incapable of
performing the Employee’s duties hereunder by reason of ill health or
other incapacity whether accidental or otherwise;
or
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20.1.4
|
below
standard performance by the Employee of the Employee’s duties, following a
written warning from the Company relating to the same;
or
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20.1.5
|
the
Employee being convicted of an indictable offence;
or
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20.1.6
|
the
Employee being guilty of indecent and/or immoral acts, including
victimisation or sexual harassment of colleagues or others;
or
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20.1.7
|
the
Employee, directly or indirectly, advising, participating or acting in
concert (within the meaning of the City Code on Take-Overs and Mergers)
with any person who makes, or is considering making, any offer for the
issued share capital of the
Company.
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| Any delay by the Company in exercising any right of termination under this Clause 20 shall not constitute a waiver thereof. |
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20.2
|
The
normal retirement age for men and women employees of the Company is
sixty-five. Subject to earlier termination pursuant to the
terms of this Employment Agreement, the Employment shall be deemed to have
terminated automatically and by mutual consent on the date the Employee
reaches that age. For the avoidance of doubt, if the Employment
terminates pursuant to this Clause 20.2, the Company shall pay the
Employee’s remuneration and benefits up to and including the date of the
Employee’s sixty-fifth birthday and thereafter no amounts shall be due and
owing from the Company to the
Employee.
|
|
20.3
|
On
termination of the Employment, the Employee shall forthwith return to the
Company in accordance with the Company’s instructions all equipment,
correspondence, records, specifications, software, models, notes, reports
and other documents and any copies thereof and any other property
belonging to the Company and/or its Associated Companies (including, but
not limited to, any mobile telephone , keys, credit cards and passes)
which are in the Employee’s possession or control. The Employee
shall, if so required by the Company, confirm in writing compliance with
the obligations under this Clause
20.3.
|
|
20.4
|
The
Employee hereby agrees that the Company may in its absolute
discretion:
|
|
20.4.1
|
pay
to the Employee a Compensation Payment in lieu of all or any part of any
notice of termination of employment (irrespective of whether such notice
of termination is given by the Employee or the Company) (to which, for the
avoidance of doubt, the Employee shall have no entitlement unless and
until the Company notifies the Employee in writing of its decision to make
such Compensation Payment to the Employee);
or
|
|
20.4.2
|
require
the Employee not to attend work and/or not to undertake all or any of the
Employee’s normal duties under this Employment Agreement during all or any
part of any period of notice (irrespective of whether such notice is given
by the Employee or the Company), PROVIDED ALWAYS that the Company shall
continue to pay the Employee’s salary and contractual
benefits during any such
period.
|
|
20.5
|
The
Company shall have the right to suspend the Employee on full pay
pending any investigation into any potential dishonesty, gross
misconduct or any other circumstances which may give rise to a right for
the Company to terminate the Employment pursuant to Clause 20.1
above. Any such suspension will not be considered as
disciplinary action by the Company.
|
|
20.6
|
The
termination of the Employment shall be without prejudice to any right of
the Company in respect of any breach by the Employee of any of the
provisions of this Employment Agreement which may have occurred prior to
such termination.
|
-11-
|
21.
|
Grievance
and Disciplinary Procedures
|
|
21.1
|
If
the Employee has any grievance relating to the Employment, the Employee
should proceed in accordance with the Company’s grievance procedures in
force from time to time details of which can be obtained from the
Company. If the matter remains unresolved, the Employee should
raise the matter in writing with
the President.
|
|
21.2
|
In
the event of any disciplinary action relating to the Employee, the
Employee should proceed in accordance with the Company’s disciplinary
procedures in force from time to time details of which can be obtained
from the Company. If the Employee is dissatisfied with any
disciplinary decision relating to the Employee, the matter should be
raised with the President
|
|
21.3
|
Neither
the grievance procedure nor the disciplinary procedure are contractually
binding on the Company and it may, at its discretion, omit all or any of
the stages of either or both
procedures.
|
|
22.
|
Prescribed
Information
|
|
|
There
are no collective agreements which directly affect the terms and
conditions of the Employment.
|
|
23.
|
Severability
|
|
The various
provisions and sub-provisions of this Employment Agreement and the
Schedules attached hereto are independent and severable and if any
provision, sub-provision, Schedule or identifiable part thereof is held to
be invalid or unenforceable by any court of competent jurisdiction then
such invalidity or unenforceability shall not affect the validity or
enforceability of the remaining provisions, sub-provisions, Schedules or
identifiable parts thereof of this Employment Agreement or the Schedules
attached hereto.
|
|
24.
|
Notices
|
|
24.1
|
Any
notice to be given hereunder shall be delivered (i) in the case of the
Company by first class post addressed to the Company’s Registered Office
for the time being and (ii) in the case of the Employee, either to the
Employee personally or by first class post to the Employee’s last known
address. The Employee shall from time to time promptly furnish
the Company with details of any change in the Employee’s current
address.
|
|
24.2
|
Notices
served personally shall be deemed delivered on such service and notices
served by post shall be deemed delivered on the second business day after
the date of posting. For the purposes of this Clause, “business
day” means a day on which banks are open for business in the place of both
the posting and the address of the
notice.
|
-12-
|
25.
|
Definitions
|
| In this Employment Agreement the following terms and expressions shall have the meanings set out below: |
|
25.1
|
an
“Associated Company” includes, without limitation, Teltronics, Inc. and
its subsidiaries, and any firm, company, corporation or other
organisation:
|
|
25.1.1
|
which
is directly or indirectly controlled by the Company;
or
|
|
25.1.2
|
which
directly or indirectly controls the Company;
or
|
|
25.1.3
|
which
is under direct or indirect common control with the Company;
or
|
|
25.1.4
|
of
which the Company or any other Associated Company owns or has a beneficial
interest in 20% or more of the issued share capital or 20% or more of its
capital assets; or
|
|
25.1.5
|
is
the successor in title or assigns of the firms, companies, corporations or
other organisations referred to
above.
|
|
|
For
the purpose of this Clause 25, a Company shall be regarded as in control
of another company if it owns directly or indirectly more than 50% of the
voting stock or other ownership or economic interest of the other company
or if it directly or indirectly possesses the power to direct or cause the
direction of the management and policies of the other company by any means
whatsoever.
|
|
25.2
|
“Company
Invention” means any improvement, invention or discovery made by the
Employee which, applying the provisions of Section 39 of the Patents Xxx
0000 in the determination of ownership is, as between the parties, the
property of the Company.
|
|
25.3
|
“Compensation
Payment” means a sum calculated as follows:
|
|
|
A
x £B
253
|
||
|
“A”
|
is
the number of days of the Employee’s notice of termination of employment
(i) to which the Employee is entitled under Clause 2.1 above; or (ii)
where the notice period has already commenced, the number of days of such
notice period which remain
outstanding;
|
|
“B”
|
is
the Employee’s annual basic salary referred to in Clause 6.1 above on the
date when the Employee is notified in writing by the Company that it will
be making a Compensation Payment. For the avoidance of doubt,
this shall not include the value of any benefits, bonus/incentive,
commission, or holiday entitlement which would have accrued to the
Employee had the Employee been employed until the expiry of the notice
period under Clause 2.1 above.
|
-13-
|
25.4
|
“Confidential
Information” means all and any Corporate Information, Marketing
Information, Technical Information and other information (whether or not
recorded in documentary form) to which the Company or any Associated
Company attaches an equivalent level of confidentiality or in respect of
which it owes an obligation of confidentiality to any third party (i)
which the Employee shall acquire at any time during the Employment, but
which does not form part of the Employee’s stock in trade; and (ii) which
is not readily ascertainable by persons not connected with the Company or
any Associated Company.
|
|
25.5
|
“Corporate
Information” means all and any information (whether or not recorded in
documentary form or on computer disk or tape) relating to the business
methods, corporate plans, strategic plans and forecasts, management
systems, organisation and management of the Company, or any Associated
Company, its finances and any maturing new business opportunities or
research and development projects of the Company or any Associated
Company.
|
|
25.6
|
“Immediate
Relatives” shall include any grandparent, spouse, child, step-child,
adopted child, grandchild, parent or spouse’s parent; or any child,
step-child, adopted child, grandchild of any such person; or any spouse of
any of the foregoing and for the purposes of this definition “spouse”
includes de
facto spouses or
co-habitees.
|
|
25.7
|
“Marketing
Information” means all and any information (whether or not recorded in
documentary form or on computer disk or tape) relating to the marketing or
sales of any past, present or future service of the Company or any
Associated Company, including, without limitation, sales targets and
statistics, market share and pricing statistics, marketing surveys and
plans, market research reports, sales techniques, price lists, discount
structures, advertising and promotional material, buying habits, the
names, addresses, telephone numbers, contact names and identities of
customers and potential customers of and suppliers and potential suppliers
to the Company or any Associated Company, the nature of their business
operations, products, services, programs and processes sold, licensed and
developed by the Company or any Associated Company, their requirements for
any service sold to or purchased by the Company or any Associated Company
and all confidential aspects of their business relationship with the
Company or any Associated Company.
|
|
25.8
|
“Technical
Information” means all and any trade secrets, secret formulae, processes,
inventions, improvements, designs, know-how discoveries, computer
programs, systems and/or software, source materials, integrated systems,
ideas, trademarks, technical specifications and other technical
information (whether or not recorded in documentary form or on computer
disk or tape) relating to the supply of any past, present or future
service of the Company or any Associated
Company.
|
|
25.9
|
“Termination
Date” shall mean the date upon which the Employment
terminates.
|
|
26.
|
Construction
|
|
26.1
|
The
provisions of Schedule I and Schedule II hereto and any additional terms
endorsed in writing by or on behalf of the parties hereto shall be read
and construed as part of this Employment Agreement and shall be
enforceable accordingly.
|
-14-
|
26.2
|
The
benefit of each agreement and obligation of the Employee under
Clause 16 and Schedule I of this Employment Agreement may be assigned
to and enforced by all successors and assigns of the Company from time to
time and such agreements and obligations shall operate and remain binding
notwithstanding the termination of this Employment Agreement, howsoever
arising.
|
|
27.
|
Prior
Agreements
This Employment
Agreement supersedes all previous letters of engagement, agreements and
arrangements (whether oral or in writing) relating to the subject-matter
hereof between the Company and the Employee, all of which will be deemed
to have been terminated by mutual consent. This Employment
Agreement constitutes the entire terms and conditions relating to the
Employment and no waiver or modification hereof shall be valid unless in
writing, signed by the parties hereto and only to the extent therein set
forth.
|
|
28.
|
Governing
Law
This Employment Agreement is governed by and
construed in accordance with the laws of England and the parties hereby
submit to the exclusive jurisdiction of the English
Courts.
|
IN
WITNESS WHEREOF
the parties hereto have executed this Employment Agreement as a Deed.
| /s/ XXXXXX X. XXXXXXXX | |
| SIGNED by Xxxxxx X. Xxxxxxxx | ) |
| and delivered as a Deed | ) |
| in the presence of: /s/ X. Xxxxxx | ) |
| /s/ XXXX X. XXXXXXX | |
| SIGNED and DELIVERED for and | ) |
| on behalf of Teltronics Limited | ) |
| by Xxxx X. Xxxxxxx, Chairman | ) |
| of the said Company | ) |
-15-
SCHEDULE
I
|
1.
|
Non-Solicitation
of Customers
|
As a
material term of this Employment Agreement and in order to protect the goodwill,
the client and vendor relations, the Confidential Information, the competitive
business advantage of the Company and the Company’s investment in the training
and education of its employees, the Employee hereby agrees that, during the
Employment and for a
period of six (6) months immediately following the Termination Date, the
Employee shall not, within the Restricted Area, directly or indirectly, either
individually or on behalf of or with any person, organization or entity and so
as to be in competition with the Business:
|
1.1
|
in
any capacity whatsoever, solicit or facilitate the solicitation of, any
business, orders or custom for any service which competes with the
Restricted Services from any Customer;
or
|
|
1.2
|
in
any capacity whatsoever, accept or facilitate the acceptance of, orders
for any service which competes with the Restricted Services from any
Customer;
|
in each
case unless first obtaining the prior written permission of the
Company.
|
2.
|
Non-Competition
|
The
Employee hereby agrees that the Employee will not, directly or indirectly, for a
period of six (6) months following the Termination Date:
|
2.1
|
hold
any Material Interest in any business which is or shall be wholly or
partly in competition within the Restricted Area with any of the
Businesses; or
|
|
2.2
|
hold
any Material Interest in any person, firm or company which requires or
might reasonably be thought by the Company to require the Employee to
disclose or make use of any Confidential Information in order properly to
discharge the Employee’s duties or to further the Employee’s interest in
such person, firm or company.
|
|
3.
|
Non-Solicitation
of Employees
|
The
Employee hereby agrees that the Employee will not for a
period of six (6) months immediately following the Termination Date
either on the Employee’s own behalf or in conjunction with or on behalf of any
other person, company, business entity, or other organisation (and whether as an
employee, director, principal, agent, consultant or in any other capacity
whatsoever), directly or indirectly:
|
3.1
|
induce,
solicit, entice, or procure any person who is a Company Employee to leave
the Company’s employment where that person is a Company Employee as at the
Termination Date; or
|
|
3.2
|
be
personally involved to a material extent in accepting into employment or
otherwise engaging or using the services of, any person who is a Company
Employee as at the Termination
Date.
|
-16-
|
4.
|
Associated
Companies
|
|
4.1
|
The
provisions of paragraphs 4.2 and 4.3 below shall apply solely in respect
of those Associated Companies (i) to whom the Employee provided services
under the terms of this Employment Agreement or (ii) for whom the Employee
was responsible, or (iii) with whom the Employee was otherwise concerned,
during the period of one year immediately preceding the Termination
Date.
|
|
4.2
|
Save
in the case of this paragraph 4, the paragraphs and defined terms in this
Schedule I shall, in addition to their application to the Company, apply
as though references to the “Associated Company” were substituted for
references to the “Company”. The obligations undertaken by the
Employee pursuant to this Schedule I shall, with respect to each
Associated Company, constitute a separate and distinct covenant and the
invalidity or unenforceability of any such covenant shall not affect the
validity or enforceability of the covenants in favour of the Company or
any other Associated Company.
|
|
4.3
|
In
relation to each Associated Company referred to in paragraphs 4.1 and 4.2
above, the Company contracts as trustee and agent for the benefit of each
such Associated Company. The Employee agrees that, if required to do so by
the Company, the Employee will enter into express covenants on the same
terms as those set out in paragraphs 1, 2 and 3 hereof directly with all
or any of such Associated Companies, mutatis
mutandis. If the Employee fails, within seven (7) days of receiving
such a request from the Company, to sign the necessary documents to give
effect to the foregoing, the Company shall be entitled, and is hereby
irrevocably and unconditionally authorised by the Employee, to execute all
such documents as are required to give effect to the foregoing on the
Employee’s behalf.
|
|
5.
|
Definitions
|
For the
purposes of this Schedule I, the following terms and expressions shall have the
meanings set out below:
|
5.1
|
“Businesses”
means all and any trades or other commercial activities of the
Company:
|
| (a) |
|
with
which the Employee shall have been concerned or involved to any material
extent at any time during the final two years of the Employment which the
Company shall carry on with a view to profit;
or
|
|
(b)
|
which
the Company shall at the Termination Date carry on with a view to profit
or have determined to carry on with a view to profit in the immediate or
foreseeable future and in relation to which the Employee shall at the
Termination Date possess any Confidential
Information.
|
|
5.2
|
“Company”
and “Associated Company” shall be as defined in the Employment Agreement,
and shall include their successors in title and
assigns.
|
-17-
|
5.3
|
“Company
Employee” means any person who was employed by the Company for at least
three (3) months prior to and on the Termination Date and with whom the
Employee had material contact or dealings in performing the duties of the
Employment.
|
|
5.4
|
“Customer”
means any person, firm or company:
|
|
5.4.1
|
with
whom or which the Employee or anyone working under the Employee’s control
or supervision has had material contact or dealings on behalf of the
Company during the period of one year prior to the Termination Date;
or
|
|
5.4.2
|
for
whom the Employee was directly responsible in a client management capacity
on behalf of the Company during the period of one year prior to the
Termination Date and who or which shall at the Termination Date be
negotiating with the Company for the provision of any Restricted Services
or to whom or which the Company has provided any Restricted
Services.
|
|
5.5
|
"Material
Interest" means:
|
|
5.5.1
|
the
holding of any position as director, officer, employee, consultant,
partner, principal or agent;
|
|
5.5.2
|
the
direct or indirect control or ownership (whether jointly or alone) of any
shares (or any voting rights attached to them) or debentures save for the
ownership for investment purposes only of up to 5% of any securities in a
company which is quoted on any Recognised Investment Exchange (as defined
in Section 207 of the Financial Services Xxx 0000 or any equivalent
provision under any superseding legislation);
or
|
|
5.5.3
|
the
direct or indirect provision of any financial
assistance.
|
|
5.6
|
“Restricted
Area” means the United Kingdom and any country in which the Company
carries on or intends to carry on any of the Businesses as at the
Termination Date.
|
|
5.7
|
“Restricted
Services" means the provision, support and servicing of software for
telecommunications account management as carried on by the Company in the
ordinary course of business.
|
|
5.8
|
“Termination
Date” shall have the meaning set out in Clause 25 of the Employment
Agreement.
|
-18-
SCHEDULE
II
Conflict
of Interest
-19-
