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EXHIBIT 10.12
DATED JANUARY 1, 1999
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(1) LCC INTERNATIONAL INC.
AND
(2) ▇▇▇▇▇ ▇▇▇▇▇
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SERVICE AGREEMENT
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SOLICITORS
Pickfords ▇▇▇▇▇
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Tel: ▇▇▇▇ ▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇ ▇▇▇▇
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INDEX
1. DEFINITIONS AND INTERPRETATION.......................................................1
2. APPOINTMENT..........................................................................3
3. TERM.................................................................................3
4. OBLIGATION TO PROVIDE WORK...........................................................3
5. HOURS OF WORK........................................................................4
6. POWERS AND DUTIES....................................................................5
7. PLACE OF WORK AND TRAVEL.............................................................5
8. SALARY AND EXPENSES..................................................................5
9. EXPENSES.............................................................................8
10. BENEFITS.............................................................................9
11. HOLIDAYS.............................................................................9
12. INCAPACITY...........................................................................9
13. CONFIDENTIALITY.....................................................................10
14. DATA PROCESSING.....................................................................12
15. RESTRICTIONS DURING EMPLOYMENT......................................................13
16. RESTRICTIONS AFTER EMPLOYMENT.......................................................13
17. TERMINATION.........................................................................16
18. RETURN OF COMPANY PROPERTY..........................................................17
19. INVENTIONS AND IMPROVEMENTS.........................................................17
20. GRIEVANCE AND DISCIPLINARY PROCEDURE................................................18
21. RECONSTRUCTION OR AMALGAMATION......................................................19
22. GENERAL.............................................................................19
23. NOTICES.............................................................................19
24. OTHER AGREEMENTS....................................................................20
25. GOVERNING LAW.......................................................................20
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THIS SERVICE AGREEMENT is effective from 1st day of January 1999
PARTIES:
(1) LCC UNITED KINGDOM, LIMITED a company registered in England under number
3072423 whose registered office is at ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ (▇▇▇
"Company"); and
(2) ▇▇▇▇▇ ▇▇▇▇▇ of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ (the "Executive").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
In this Agreement:
1.1 unless the context otherwise requires:
the "Act" means the Employment Rights ▇▇▇
▇▇▇▇;
"Associated Company" means a company which is from
time to time a subsidiary or a holding
company of the Company or a subsidiary
other than the Company of any such
holding company where "subsidiary" and
"holding company" have the meanings
given to them by section 736 of the
Companies ▇▇▇ ▇▇▇▇;
the "Auditors" means the auditors of the Company from
time to time;
the "Board" means directors of the Company present
at a meeting of them or of a committee
of them duly convened constituted and
held;
"Competing Business" means any business, person or entity
that: (a) provides radio frequency
engineering, fixed network
engineering, system deployment
(including site acquisition,
construction management, program
management or similar services),
benchmarking, wireless network
outsourcing, or similar services to
the wireless telecommunications
industry, or (b) is engaged in the
business of owning, acquiring (by
sale/leaseback or otherwise),
constructing (on a build-to-suit
basis), leasing or managing
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telecommunications towers or cell
sites;
"EMEA" means Europe, Middle-East and Africa;
"Restricted Business" means the part or parts of the
Company's and/or relevant Associated
Company's business in which the
Executive was involved to a material
extent during the last 12 months of
his employment;
"Restricted Client" means any person, firm, company,
business entity or other organisation
which during the last 12 months of the
Executive's employment was a client or
customer of the Restricted Business
and with which during such period the
Executive had significant personal
contact or dealings;
"Restricted Employee" means senior officer, employee, or
consultant of the Company with whom,
during the last 12 months of his
employment, the Executive had
significant contact or dealings in the
course of his employment;
"Restricted Supplier" means any person, firm, company,
business entity or other organisation
which during the last 12 months of his
employment was a supplier to the
Restricted Business and with which
during such period the Executive had
significant personal contact or
dealings;
the "Regulations" means the Working Time Regulations
1998.
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1.2 References to any statutes or statutory provisions
include those statutes or statutory provisions as
amended, extended, consolidated, re-enacted or replaced
from time to time and any orders, regulations,
instruments or other subordinate legislation made
thereunder;
1.3 unless otherwise specified, words importing the singular
include the plural, words importing any gender include
every gender and words importing persons include bodies
corporate and unincorporate; and (in each case) vice
versa;
1.4 references to clauses and other provisions are
references to clauses and other provisions of this
Agreement;
1.5 the clause headings shall not affect interpretation.
2. APPOINTMENT
The Company hereby agrees to employ the Executive and the Executive
agrees to serve the Company as Senior Vice President - EMEA. The
Executive is expected to carry out such duties as may from time to time
reasonably be allocated to him. The Company also reserves the right to
amend the Executive's position to take into account the changing needs
of the business and his role within it.
3. TERM
3.1 Subject always to clause 17, either party may terminate
the employment by giving not less than 6 month's prior
written notice to the other.
3.2 For the purposes of the Act the date of commencement of
the Executive's continuous employment shall be 1 January
1999.
3.3 The Company reserves the right to terminate the
employment forthwith and pay the Executive in lieu of
notice rather than making the Executive serve any period
of notice otherwise due under clause 3.1. In this event
the Executive shall be paid in accordance with clause
17.2.
4. OBLIGATION TO PROVIDE WORK
4.1 The Company may at any time, including where either party gives
notice to terminate this employment or otherwise purports to
terminate it, or for the purposes of investigating any
disciplinary matter, require the Executive not to attend for work
and/or not to undertake all or any duties for such period as the
Company may specify (the "Leave Period").
4.2 During the Leave Period:
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4.2.1 the Company shall not be obliged to provide the
Executive with any work to do, nor to vest in or assign
to the Executive any powers or duties. The Company may
however, at its absolute discretion, require the
Executive to perform such duties and provide such
assistance to the Company as it may specify;
4.2.2 the Company may exclude the Executive from all or any
part(s) of its place(s) of business from time to time
and/or require the Executive to remain at home;
4.2.3 the Executive shall remain an employee of the Company
bound by the terms and conditions of this Agreement
(other than his obligation to perform work for the
Company unless specifically required by the Company to
do so). In particular (but without limitation) the
Executive shall, during the Leave Period, remain bound
by his obligations of loyalty and good faith, of
exclusivity of service and of confidentiality; and
4.2.4 the Company shall continue to pay the Executive's salary
and provide any other benefit to which the Executive is
contractually entitled (provided that it may, in its
absolute discretion, replace any such benefit with a
cash equivalent sum).
4.3 The Leave Period shall not, in any event, exceed 6 months.
4.4 It is hereby agreed that the exercise by the Company of any of
its rights under this clause shall not constitute a breach of
this Agreement and nor shall the Executive have any claim against
the Company in respect of any such action.
5. HOURS OF WORK
5.1 The Executive's normal hours of work shall be from 8.30 a.m. to
5.00 p.m. Monday to Friday. The Executive shall also be required
to work such additional hours outside these hours as may be
necessary for the proper performance of his duties. This may
include weekends or Bank or Public or statutory holidays. The
Executive will not be entitled to any additional pay, or time off
in lieu, for additional hours worked.
5.2 In order properly to perform his duties, the Executive's working
hours may exceed the working time limit of 48 hours per week, as
provided by the Regulations. The Executive agrees to opt out of
the weekly working time limit which shall therefore not apply to
him. Provided always that the Executive is not covered by
Regulation 20 of the Regulations the Executive may opt back
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into the application of the weekly working time limit on giving
the Company 3 months' prior notice in writing.
6. POWERS AND DUTIES
During the continuance of his employment hereunder the Executive shall:
6.1 unless prevented by ill health or other unavoidable cause devote
the whole of his time attention and abilities to carrying out his
duties;
6.2 exercise such powers and perform such duties in relation to the
business of the Company which are compatible with his status and
as may from time to time reasonably be vested in or assigned to
him by the Company;
6.3 comply with all reasonable directions from time to time given to
him by the Company and with all rules and regulations from time
to time laid down by the Company concerning its employees which
are consistent with this Agreement;
6.4 carry out his duties in a proper and efficient manner and use his
best endeavors to promote and maintain the interests and
reputation of the Company; and
6.5 at all times promptly give to the Company (in writing if so
requested) all such information and explanations as the Company
may require in connection with his employment hereunder or with
the business of the Company.
7. PLACE OF WORK AND TRAVEL
7.1 Prior to receipt of the appropriate work permits enabling the
Executive to work in the United Kingdom, the Executive shall
normally work in Zurich. Following receipt of the appropriate
work permits the Executive shall normally work at the Head Office
for EMEA in the United Kingdom. However, the Executive shall work
at such location as the Company shall reasonably require from
time to time.
7.2 The Executive shall travel to such places (whether within or
outside the United Kingdom) and in such manner and on such
occasions as the Company may from time to time reasonably
require.
8. SALARY AND EXPENSES
8.1 As remuneration for his services during his employment hereunder
the Company shall pay to the Executive a salary at the rate of
SFR300,000 (three hundred thousand Swiss Francs) per annum less
applicable Tax, National Insurance and any other deductions which
the Company may lawfully make. Such salary is payable in monthly
installments in arrears (normally on or around
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the last day of each month) to a bank account designated by the
Executive. Such bank account may be in the United Kingdom or
Switzerland only.
8.2 The Company shall be entitled at any time and from time to time
to recover and retain all sums from time to time owed to the
Company or any Associated Company by the Executive, howsoever
arising. Such sum(s) may be recovered by:
8.2.1 deducting it from any sum(s) from time to time payable
to the Executive by the Company (including
remuneration); and/or
8.2.2 requiring the Executive to repay the relevant amount to
the Company (or the balance remaining outstanding
following such deduction(s) under 8.2.1 above) as the
Company thinks fit whether immediately or on terms
otherwise acceptable to the Company.
8.3 In addition to the Executive's basic annual salary, the Company
shall pay to the Executive:
8.3.1 a sign on bonus of US$50,000 (the "Sign On Bonus")
payable in three installments with US$25,000 by 31 May
1999, and US$12,500 due on each of 1 July 1999 and 1
October 1999 (the "Payment Dates") provided that the
Executive is still in employment on the Payment Dates
and has not given the Company nor received from the
Company notice to terminate his employment; and
8.3.2 an annual achievement bonus of approximately 50% of
Executive's base salary based on the Company and/or
Executive's achieving mutually acceptable annual
performance targets (which the parties shall negotiate
in good faith prior to the payment of such bonus), which
shall be payable on or around 31 January of each year
(for the prior year) commencing 31 January 2000 (the
"Achievement Bonus") provided that the Executive is
still in employment on the Achievement Bonus payment
date and has not given to the Company notice to
terminate his employment.
8.4 The Achievement Bonus target for 1999 is US$100,000 ("Bonus
Target") based on the targets outlined in Section 8.5 below.
8.5 The Bonus Target is dependent on the Company meeting EMEA and LCC
International objectives. 70% of the Bonus Target (i.e.
US$70,000) is based on the Company achieving the EMEA objective
described below ("EMEA Objective") and 30% of the Bonus Target
(i.e. US$30,000) is based on the
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Company achieving the LCC International objective, from
continuing operations, described below ("LCC International
Objective").
8.5.1 The EMEA Objective and LCC International Objective are based
the achievement of Revenue and EBIT targets:
8.5.1.1 50% of EMEA Objective is dependant on achieving Revenue
of US$32.7 million (adjusted down by US$300,000 per
month for each month or part of a month up to 1 January
2000 in which the Company does not receive a tower
maintenance contract from MTN in South Africa); and
8.5.1.2 50% of EMEA Objective is dependant on achieving EBIT
target of US$4.045 million (adjusted down to US$3.685
million if the Company does not receive a tower
maintenance contract from MTN in South Africa) ("EMEA
Objective EBIT Target");
8.5.1.3 50% of LCC International Objective is dependant on
achieving Revenue of $90 Million (exclusive of any
revenue attributable to contracts with XM Satellite
Radio); and
8.5.1.4 50% of LCC International Objective is dependant an EBIT
target of US$9 million.
8.5.2 If the EMEA Objective is achieved bonus will be paid in
accordance with clause 8.5.4.
If the LCC Objective is achieved bonus will be paid in accordance
with clause 8.5.4. The Executive and the Chief Executive officer
of LCC International may review the LCC International Objective
from time to time and make appropriate mutually acceptable
adjustments.
(EMEA Objective and LCC Objective together called the
"Objectives")
8.5.3 For the Objectives in clause 8.5.2 to be achieved both the EBIT
and Revenue Targets for each Objective (subject to clause 8.5.4)
must be met.
8.5.4 The Bonus Target is paid as follows:
EMEA OBJECTIVE LCC OBJECTIVE
Target met 70% Target Bonus paid 30% Target Bonus paid
95%-100%
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Target met 35% Target Bonus paid 15% Target Bonus paid
Less than 95%
Target met No Target Bonus paid No Target Bonus paid
8.5.5 If EMEA EBIT exceeds 100% of EMEA Objective EBIT Target the
Executive will receive 10% of the amount by which EBIT exceeds
EMEA Objective EBIT Target.
8.5.6 The Objectives include only services (engineering, programme
management, outsourcing). The financial calculations do not
include any deals to acquire, construct or manage
telecommunications towers or sites.
8.5.7 In this clause:-
Revenue means turnover as shown in the audited accounts of the
Company.
EBIT means earnings before interest and tax as shown in the
audited accounts of the Company.
LCC International means LCC International, Inc.
9. EXPENSES
Provided that the Executive fully complies with the Company's expenses
reporting procedure which may from time to time be notified to the
Executive, the Company shall pay or reimburse to the Executive (subject
to production of such vouchers and/or other evidence as it may require)
all proper and reasonable expenses wholly, exclusively and necessarily
incurred by him in connection within his duties hereunder up to the
limit of a maximum budget determined from time to time by the Company.
In addition, the Company will pay Executive a monthly car allowance of
SFR2,250.
10. BENEFITS
The Executive may be entitled to such benefits as are offered by the
Company from time to time.
11. HOLIDAYS
11.1 The Executive shall be entitled in every complete calendar year
of employment here under (and pro rata where his employment is
less than a complete calendar year) to 25 working days paid
holiday per year, plus any Public or Bank holidays. This holiday
entitlement is also inclusive of the Executive's statutory
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holiday entitlement under the Regulations which shall be deemed
to be taken first.
11.2 The Company may, on termination of this employment, make a
payment in lieu of outstanding holiday entitlement (in respect of
the holiday year in which termination takes place). Equally, the
Executive may be required to repay to the Company for holiday
taken in excess of his actual entitlement for such year. For the
purposes of this clause the basis of calculation shall be 1/261
of basic annual salary for each such day's holiday entitlement.
Any such payment made by the Company is made net of tax and
national insurance contributions.
11.3 No payment in lieu of untaken holiday entitlement is made where
the employment is terminated by reason of gross misconduct.
12. INCAPACITY
12.1 The Executive shall give all assistance reasonably required by
the Company to enable it to reclaim any statutory sick pay
entitlement paid to the Executive, in default of which the
Company shall be entitled to recover from the Executive or to
deduct from any subsequent remuneration payable to the Executive
any amount which the Company has been unable to reclaim in
consequence.
12.2 This clause shall not in any way affect the right of the Company
to terminate this Agreement in the event of the Executive being
prevented from performing his duties for the periods provided in
clause 17.
12.3 The Company may at its expense and at any time during the
Executive's appointment require the Executive to submit to a
medical examination by a doctor nominated by the Company.
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13. CONFIDENTIALITY
13.1 The Executive is aware that during this employment he will have
access to, contact with, and be entrusted with trade secrets and
secret and other confidential information of the Company
("Confidential Information"). In this Agreement the term
"Confidential Information" shall include but shall not be limited
to any trade secret or confidential or secret information
concerning the business financing and organisation of the Company
and their operations, processes, dealings, affairs, know how,
customers, clients, suppliers, prospects, plans, research and
development, trade secrets, financial projects and projections,
technical information, target details and accounts, fee levels,
pricing, policies, commissions and commission charges, budgets,
forecasts, reports, interpretations, records, corporate and
business plans, planned products and services, marketing and
advertising plans requirements and materials, marketing surveys
and research reports, market share and pricing statistics,
computer software and passwords, prospective business, business
methods, systems, transactions, accounts, trading or any
information relating to customer requirements, service lists,
structures, plans, designs, formulae, product lines together with
any material marked confidential, any information which the
Executive is told is confidential or ought reasonably to expect
to be confidential, and any information given in confidence to
the Company.
13.2 In addition to, and without prejudice to his obligations under
common law to keep confidential information secret, the Executive
hereby agrees that he shall not, except as authorised or required
in the proper performance of his duties hereunder, or ordered by
a court of law, in any way, whether directly or indirectly,
reveal to any person, firm, company, business entity or other
organisation whatsoever, or use for his own purposes or for any
purpose other than that of the Company, and shall use his best
endeavours to prevent the improper use or disclosure of any
Confidential Information (and shall report to the Company the
improper use or disclosure of any Confidential Information).
13.3 The restrictions in this clause shall apply during this
employment and shall continue after its termination without limit
in point of time, but shall cease to apply to Confidential
Information which comes to the public domain otherwise than
through an unauthorised use or disclosure by the Executive or a
third party.
13.4 The Executive shall not make or communicate any statement
(whether written or oral) to any representative of the press or
other media whatsoever, and shall not write for publication on
any matter connected with or relating to the
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business of the Company, and/or this employment and/or its
termination, except with the specific prior consent in writing of
the Board.
13.5 Nothing in this clause shall be construed as preventing the
Executive from making a "protected disclosure" within the meaning
of the Public ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
13.6 All notes, memoranda or other media by which such information may
be recorded or stored (together with all copies thereof) of any
Confidential Information together with all intellectual property
rights which may subsist therein shall be and remain at all times
the absolute property of the Company and shall be surrendered by
the Executive to the Company (or as it shall direct) immediately
on the termination of this employment and immediately on request
by the Board whenever such request may be made.
13.7 Examples of "confidential information" to expand this clause:
13.7.1 details of customers and active prospects;
13.7.2 details of their particular requirements and prices
offered;
13.7.3 current/proposed suppliers, product and prices of supply
and supply capabilities;
13.7.4 methods of manufacture, production processes and
production controls (including quality controls);
13.7.5 costings, profit margins, discount rebates, financial
information;
13.7.6 current activities and current/future plans;
13.7.7 development of new product;
13.7.8 production or design secrets.
13.8 The Executive recognises that, in the proper performance of his
duties hereunder he will have access to, come into contact with,
and be entrusted with, Confidential Information including
personal knowledge of, valuable personal contact with, and
influence over, the clients, suppliers and employees of the
Company. The Executive therefore agrees to the restrictions in
clauses 15 and 16 and acknowledges that they are reasonable and
necessary to protect the legitimate business interests of the
Company, both during and after the termination of this
employment.
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13.9 The Executive acknowledges that prior to entering into this
Agreement he took full and independent legal advice, on the
nature, extent and enforceability of his obligations under this
Agreement, and confirms, in particular, that he fully understands
the nature and extent of his obligations under this clause 13 and
that he was advised that the covenants contained in clauses 15
and 16 are valid and enforceable against him. The Executive
further acknowledges, that his remuneration hereunder has been
agreed on the basis that such covenants are binding and
enforceable against him.
14. DATA PROCESSING
14.1 The Executive acknowledges and accepts that information relating
to him ("personal data") may be "processed" by the Company as
required in order properly to fulfil the Company's obligations to
the Executive under this Agreement and/or for reasons relating to
or which may become related to the Executive's employment with
the Company. Such processing will principally be for personnel,
administrative, pay roll and other corporate purposes.
14.2 The term "personal data" shall include information of a sensitive
personal nature including information concerning:
14.2.1 the Executive's racial or ethnic origin;
14.2.2 the Executive's religious beliefs or other beliefs of a
similar nature;
14.2.3 any commission or alleged commission by the Executive of
any offence; or
14.2.4 any proceedings for any offence committed or alleged to
have been committed by the Executive, the disposal of
such proceedings or the sentence of any court in such
proceedings.
14.3 The term "processing" includes the obtaining, recording or
holding of personal data or carrying out any operation(s) on the
personal data, including, inter alia, organising, altering,
retrieving, consulting, using, disclosing or destroying the
personal data.
14.4 The Executive agrees that the Company may transfer personal data
outside the European Economic Area.
14.5 The Company (the data controller) will determine the purposes for
which and the way in which personal data will be processed.
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15. RESTRICTIONS DURING EMPLOYMENT
Without prejudice to the provisions of clause 6 and except with the
prior written consent of the Board, the Executive shall not during his
employment hereunder whether directly or indirectly or whether solely or
jointly with or as agent, director, partner, manager, employee,
consultant, shareholder or independent contractor of or in any other
capacity engage in, carry on or be interested in any other business.
Provided that nothing in this clause shall preclude the Executive from
being the holder or beneficial owner of any securities in any other
company which are listed or dealt in on any recognised stock exchange by
way of bona fide investment only and where the Executive (together with
his spouse, children, parents and parents' issue) neither holds nor is
beneficially interested in more than a total of 5 per cent of any single
class of the securities in that company.
16. RESTRICTIONS AFTER EMPLOYMENT
16.1 The Executive shall not:
16.1.1 for a period of 12 months after termination of his
employment, (less the Leave Period) in competition with
the Company, directly or indirectly, and whether on his
own behalf or for any other person, firm, company,
business entity or other organisation solicit or induce
(or attempt or assist in so doing) any Restricted
Employee to leave the Company and join, or provide
services for, a Competing Business;
16.1.2 for a period of 12 months after termination of his
employment, (less the Leave Period) in competition with
the Company, directly or indirectly and whether on his
own behalf or for any other person, firm, company,
business entity or other organisation, solicit or induce
(or attempt or assist in so doing) away from the Company
to a Competing Business, the custom or business of any
Restricted Client for the purpose of providing to the
Restricted Client services which are the same as, or of
a materially similar kind to, those services formerly
supplied to the Restricted Client by the Restricted
Business in the last 12 months of his employment;
16.1.3 for a period of 12 months after termination of his
employment, (less the Leave Period) in competition with
the Company, directly or indirectly and whether on his
own behalf or for any other person, firm, company,
business entity or other organisation entice, solicit or
induce (or attempt or assist in so doing) away from the
Company to a Competing Business the supply of materials
from any Restricted Suppliers for the purpose of gaining
the supply of materials from such supplier which are the
same
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as, or of a materially similar kind to those supplied by
the supplier to the Restricted Business in the last 12
months of his employment.
16.2 If the:
16.2.1 Executive's employment is terminated by the Company for
misconduct or any reason falling within clause 17.1 the
Executive will be subject to the Non-Competition
Restriction as defined below for a period of 6 months
after the termination of his employment. The Executive
shall be bound by the Non-Competition Restriction for an
additional period of a further 6 months (less any Leave
Period) PROVIDED ALWAYS that the Company pays to the
Executive during the additional period an amount each
month that is equivalent to his monthly salary. For the
avoidance of doubt the Company shall make no payment of
any salary during the initial 6 month period;
16.2.2 Executive gives full and proper notice of termination of
his employment in accordance with clause 3.1 of this
Agreement the Executive will be subject to the
Non-Competition Restriction as defined below for a
period of 6 months after the termination of his
employment PROVIDED ALWAYS that the Company pays to the
Executive during this 6 month period an amount each
month that is equivalent to his monthly salary;
16.2.3 Executive fails to give proper notice of termination in
accordance with clause 3.1 of this Agreement (which, for
the avoidance of doubt will amount to a breach of this
Agreement) by giving shorter or no notice, the Executive
will be subject to the Non-Competition Restriction as
defined below for the period by which the notice given
by the Executive is shorter than the notice required to
be given under clause 3.1, or where no notice is given,
for the period of 6 months. For the avoidance of doubt
the Company shall make no payment of any salary during
any such period. The Executive shall be bound by the
Non-Competition Restriction for an additional period of
a further six months (less any Leave Period) PROVIDED
ALWAYS that the Company pays to the Executive during the
additional period an amount each month that is
equivalent to his monthly salary;
16.2.4 Executive's employment is terminated by the Company for
a reason not set out in Clause 16.2.1 the Executive will
be subject to the Non-Competition Restriction as defined
below for a period of 12 months (less any Leave Period)
after the termination of his employment PROVIDED ALWAYS
that the Company pays to the Executive an amount each
month that is equivalent to his monthly salary.
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"Non-Competition Restriction" means: the Executive shall
not after termination of his employment, whether on his
own behalf, or for any other person, firm, company,
business entity or other organisation, be directly or
indirectly employed or engaged in or perform services in
respect of or be concerned with or interested in or
accept a directorship of or hold any other office within
any Competing Business in those geographical areas in
which he was so involved, on behalf of the Company
during the final 12 months of his employment.
16.3 The Executive covenants that, in respect of any Associated
Company in the business and/or affairs of which he shall at any
time during the period of 12 months immediately preceding the
termination of this employment, have been involved to a material
extent (a "Relevant Associated Company"), he will perform and
observe the several covenants set out above and that each such
covenant shall be construed and enforced as a separate covenant
in respect of each Relevant Associated Company 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 Relevant Associated Company. For the
purposes of giving effect to this sub-clause references to the
Company in this clause and in the definitions of Prohibited
Business(es), Restricted Area, Restricted Person, and Restricted
Client shall be deemed to refer to the relevant businesses,
geographical area(s), personnel and clients and prospective
clients of any Relevant Associated Company.
16.4 Nothing in this clause shall preclude the Executive from holding
by way of bona fide investment only, not more than 5% of any
class of issued shares or other securities which are listed or
dealt in on any recognised investment exchange.
16.5 Each of the restrictions set out in this clause constitutes an
entirely separate, severable and independent restriction on the
Executive.
16.6 While the restrictions contained in this clause are considered by
the Executive and the Company to be reasonable in all the
circumstances it is recognised that restrictions of the nature in
question may fail for reasons unforeseen and accordingly it is
hereby declared and agreed that if any of such restrictions shall
be adjudged to be void as going beyond what is reasonable in all
the circumstances for the protection of the interests of the
Company and/or a Relevant Associated Company but would be valid
if part of the wording thereof were deleted and/or the periods
(if any) thereof reduced and/or the scope and/or geographical
area dealt with reduced the said restrictions shall apply with
such modifications as may be necessary to make them valid and
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enforceable and any such modification shall not thereby affect
the validity of any other restriction contained in this
Agreement.
17. TERMINATION
17.1 Notwithstanding any other provision of this Agreement, the
Company (without prejudice to its other rights and remedies) may
terminate this Agreement forthwith by written notice to the
Executive if he shall:
17.1.1 commit any serious or persistent breach of any of his
obligations under this Agreement or fail to remedy any
such breach capable of remedy within 30 days of
receiving notice in writing requiring him so to do or
shall neglect or fail (otherwise than by reason of
accident or ill health) or refuse to carry out the
duties reasonably required of him hereunder or to comply
with any lawful and reasonable orders or directions
given to him by the Board (or such officer of LCC
International, Inc. as the Board shall designate)
consistent with the terms of this Agreement;
17.1.2 be guilty of any fraud, dishonesty, serious breach of
duty or serious misconduct or any other conduct
calculated or likely to affect prejudicially the
interests or reputation of the Company;
17.1.3 be convicted of any criminal offence involving
dishonesty;
17.1.4 become bankrupt or make any arrangement or composition
with his creditors;
17.1.5 be or become of unsound mind or be or become a patient
for any purpose of any enactment relating to mental
health;
17.1.6 by reason of illness, accident or for any other cause
become or be unable properly to perform in whole or in
part his duties hereunder for an unbroken period of 26
consecutive weeks;
17.1.7 fail to perform the material duties of his position
having been given notice of such failure to perform and
not having remedied such failure to perform within any
period specified in such notice.
17.2 In the event that the Executive is not given notice under clause
3.1 and instead the Company exercises its right to pay the
Executive in lieu of notice under clause 3.3 the Executive will
receive his salary in monthly instalments (normally on or around
the last day of each month) until the date, if any, on which the
Executive secures alternative employment or enters into an
arrangement under
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which he will act as a consultant to a person, firm, company,
business entity or other organisation.
18. RETURN OF COMPANY PROPERTY
18.1 The Executive shall promptly whenever requested by the Company
and in any event immediately upon the termination of his
employment deliver to the Company (or as it may direct) all motor
cars, credit cards, keys and passes, equipment, lists of clients
and customers, address lists, address books, computers, computer
discs, software, computer hardware, correspondence, documents,
books, papers, files, records and reports and other property or
material (irrespective of the medium in which such information
may be recorded or stored) belonging to or relating to the
business of the Company or to its customers or clients which may
have come into his possession, custody or control in the course
of or in consequence of this employment and the Executive shall
not be entitled to and shall not retain any copies or summaries
thereof or extracts therefrom. The Executive shall delete all
such information, together with all Confidential Information
stored on equipment belonging to him, or on equipment belonging
to the Company which the Company shall specifically notify to him
in writing that he is not required to return under the terms of
this clause. The Executive will on request, sign an undertaking
of compliance with his obligations pursuant to this clause.
19. INVENTIONS AND IMPROVEMENTS
19.1 The Executive acknowledges that because of the nature of his
duties and the particular responsibilities arising as a result of
such duties which he owes to the Company and to any Associated
Companies, he has a special obligation to further the interests
of the Company and Associated Companies. In particular, his
duties may include reviewing the products and services of the
Company and any Associated Companies with a view to improving
them with new and/or original ideas, designs, works and
inventions and implementing such improvements.
19.2 The Executive agrees that he shall promptly disclose to the
Company any idea, design, work or invention which is relevant to
or capable of use in the business of the Company or any
Associated Companies made by him in the course of his employment,
whether or not in the course of his duties. All ideas, designs,
works and inventions of any nature whatsoever in connection with
the business of the Company or of any Associated Companies, which
are made by the Executive or in which he has played a part in
making during the course of his
20
employment shall be the exclusive property of the Company. The
Executive acknowledges that the benefits of all patents,
copyrights and other intellectual property rights (if any) in
respect of such ideas, designs, works or inventions, which arise
anywhere in the world or in any part or parts of the world, shall
also be the exclusive property of the Company.
19.3 The Executive will at the request of and at the expense of the
Company, do and execute all such things and documents as may be
necessary to give the Company the full benefit of such ideas,
designs, works and inventions. By signing this Agreement, the
Executive waives any rights which he may have in any such ideas,
designs, works or inventions which are or have been conferred
upon him by Chapter IV of Part I of the Copyright, Designs and
Patents ▇▇▇ ▇▇▇▇ headed "Moral Rights".
19.4 The Executive hereby irrevocably and by way of security appoints
the Company and each Associated Company now or in the future
existing to be his attorney and in his name and on his behalf to
sign, execute and do all acts, things and documents which he is
obliged sign, execute and do under the provisions of this
Agreement and the Executive hereby agrees forthwith on the
request of the Board to ratify and confirm all such acts, things
and documents signed, executed or done in pursuance of this
power.
20. GRIEVANCE AND DISCIPLINARY PROCEDURE
20.1 If the Executive wishes to seek redress of any grievance relating
to this employment (other than one relating to a disciplinary
decision) he should refer such grievance to his line manager
(presently, ▇▇▇ ▇▇▇▇) for resolution. If the grievance is not
resolved by discussion with his line manager it will be referred
to the Board (excluding Executive) for resolution. The Executive
accepts that the Board's decision shall be final and binding upon
him.
20.2 The Company's disciplinary procedures from time to time in force
shall apply to the Executive.
21. RECONSTRUCTION OR AMALGAMATION
If this employment is terminated by reason of the liquidation of the
Company for the purpose of reconstruction or amalgamation and the
Executive is offered employment with any concern or undertaking
resulting from the reconstruction or amalgamation on terms and
conditions not less favourable than the terms of this Agreement, then
the Executive shall have no claim against the Company in respect of the
termination of his employment under this Agreement.
22. GENERAL
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22.1 No failure or delay by the Company in exercising any right, power
or privilege under this Agreement shall operate as a waiver
thereof nor shall any single or partial exercise by the Company
of any right, power or privilege preclude any further exercise
thereof or the exercise of any other right, power or privilege.
22.2 There are no collective agreements which directly affect the
terms and conditions of the Executive's employment. The
information required to be given to the Executive under the Act
is set out in this Agreement.
23. NOTICES
23.1 Any notice or other communication required or permitted to be
given or made under this Agreement shall be in writing and be
delivered to the relevant party personally or sent by first class
prepaid letter to the address of that party specified in this
Agreement or to that party's telex or facsimile number thereat or
at such other address or telex or facsimile number as may be
notified from time to time for this purpose by that party.
Service at the last notified address or telex or facsimile number
shall be effective for the purposes of this Agreement
notwithstanding the fact that either party may subsequently have
changed its address or telex or facsimile number without having
notified the other party under the provisions of this clause.
23.2 Unless the contrary shall be proved each such notice or
communication shall be deemed to have been received, if by
letter, 72 hours after posting and, if by personal delivery or
telex, when, respectively delivered or transmitted. A notice by
facsimile shall be deemed received on receipt by the sender of
the correct answer back message.
24. OTHER AGREEMENTS
This Agreement contains the entire understanding between the parties and
supersedes and replaces all previous contracts of service or other
employment arrangements (whether written or oral) between the Executive
and the Company which, as from the commencement of this Agreement, shall
have no further effect and shall be deemed terminated by mutual consent.
The Executive acknowledges and warrants to the Company that he is not
entering into this Agreement in reliance upon any representation not
expressly set out in this Agreement.
25. GOVERNING LAW
This Agreement shall be governed by and construed in all respects in
accordance with English law and the parties hereto agree to submit to
the non-exclusive jurisdiction of the English Courts as regards any
claim or matter arising in respect of this Agreement.
22
IN WITNESS whereof this Agreement has been executed and delivered as a Deed by
or on behalf of the parties hereto the day and year first above written.
EXECUTED as a deed by )
LCC UNITED KINGDOM LIMITED )
and signed by two duly )
authorized officers on its behalf: )
[sig]
Director
Director/Secretary
SIGNED as a deed by )
▇▇▇▇▇ ▇▇▇▇▇ ) [sig]
in the presence of: )
Signature of Witness: /s/ JAN M. FONGEN
Name of Witness JAN M. FONGEN
Address of Witness: ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇▇, ▇▇
Occupation of Witness: REGIONAL DIRECTOR
