Exhibit 10.19
DATED 23 February 2006
SITEL Europe Limited
- and -
ROBERT SCOTT MONCRIEFF
ESQ
SERVICE AGREEMENT
TAYLOR WESSING
Carmelite
50 Victoria Embankment
Blackfriars
London EC4Y ODX
Tel No: 020-7300 7000
Fax No: 020-7300 7100
SMN/NRB
INDEX
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Clause
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Page No.
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1.
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Definitions and Interpretations
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1
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2.
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Position and Terms
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3
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3.
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Remuneration
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4
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4.
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Pensions and benefits
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5
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5.
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Holidays and Holiday Pay
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6
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6.
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Sickness/Incapacity
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7
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7.
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Duties
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8
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8.
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Performance of Duties
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9
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9.
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Working Time
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9
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10.
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Garden Leave
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11.
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Expenses
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12.
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Confidential Information and Trade
Secrets
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10
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13.
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Intellectual Property Rights
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11
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14.
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Outside Interests
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12
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15.
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Termination of Directorship
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12
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16.
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Termination on the happening of certain
events
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12
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17.
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Suspension
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13
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18.
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Executive’s obligations on termination of
employment
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13
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19.
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Effect of termination of this
agreement
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14
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20.
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Restrictive Covenants
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14
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21.
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Reasonableness of Restrictions
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14
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22.
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Grievance and disciplinary procedure
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15
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23.
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Prior Agreements
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15
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24.
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Notices
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15
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25.
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Miscellaneous
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16
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26.
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Law and Jurisdiction
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16
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SCHEDULE 1 Sales & Marketing
Staff
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17
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SCHEDULE 2 Severance payments
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20
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Signing clauses
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Appendix
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2
THIS AGREEMENT
is made on 23 February
2006.
BETWEEN
(1)
SITEL Europe Limited
, the registered office of which is
at Merit House, Timothy’s Bridge Road, Stratford upon Avon,
Warwickshire, CV37 9HY (the “Company”); and
(2)
Robert Scott Moncrieff
of 211 Ice Wharf 17 New Wharf Road
London N1 9RF (the “Executive”).
INTRODUCTION
The Company has agreed to employ the
Executive and the Executive has agreed to be employed by the
Company on the terms and conditions contained in this
agreement.
AGREED TERMS
1.
Definitions and
Interpretations
1.1
In this agreement and the recitals
and schedules the following expressions shall have the meanings set
out opposite them:
“Accounting
Period” means 1
January to 31 December in each year.
“ Board ” means
the board of directors of the Company from time to time or any
committee of the Board duly appointed by it;
“Business
Day” means any day
other than a Saturday, Sunday or any other day which is a public
holiday in the place or places at which the transaction in question
is being effected or the notice in question is effected;
“Compensation
Committee” means
the Compensation Committee of the board of directors of SITEL
Corporation;
“Effective
Date” means the
date of this agreement;
“Employment” means the employment established by this
agreement;
“Group”
means the Company and its Group
Members;
“ Group Member ”
means the Company, any holding company of the Company (as defined
in s736 of the Companies Act 1985) and any subsidiary undertakings
of the Company or such holding company and “ Member of the
Same Group ” as any entity means any group undertaking as
so defined of that entity;
“Holiday
Year” means a
period of 12 months from 1 January in each calendar year to 31
December in the following calendar year;
“Scheme”
means the SITEL UK Group Pension
Scheme; and
“Termination
Date ” means the
date on which the Executive’s employment under this agreement
terminates.
3
1.2
In this agreement and the recitals
and the schedules:
a)
reference to any statute or
statutory provision includes a reference to that statute or
statutory provision as amended, extended or re-enacted and to any
regulation, order, instrument or subordinate legislation under the
relevant statute or statutory provision;
b)
reference to the singular includes a
reference to the plural and vice versa;
c)
reference to any recital, clause,
sub-clause or schedule is to a recital, clause, sub-clause or
schedule (as the case may be) of or to this agreement;
d)
reference to any gender includes a
reference to all other genders; and
e)
references to persons in this
agreement include bodies corporate, unincorporated associations and
partnerships and any reference to any party who is an individual is
also deemed to include their respective legal personal
representative(s).
2.
Position and Terms
2.1
This agreement shall be effective
from “Effective Date” and subject as hereafter provided
shall continue in force thereafter until terminated by not less
than three months’ written notice given by either party to
the other at any time.
2.2
The Executive may be entitled to a
termination payment on or after the Termination Date subject to the
terms of Schedule 2 of this agreement.
2.3
There is no employment with a
previous employer which counts as part of the Executive’s
continuous period of employment for the purposes of the Employment
Rights Act 1996 which began on 14 April 1998.
2.4
During the continuance of this
agreement the Company shall employ the Executive as Executive Vice
President and he will serve the Company in the manner hereinafter
mentioned.
2.5
The Company shall be entitled in its
absolute discretion, instead of giving notice to terminate the
Employment as herein provided, to terminate the Employment without
notice and to pay the Executive an amount equal to the basic salary
(calculated pursuant to sub-clauses 3.1 and 3.2) to which the
Executive would otherwise be entitled hereunder if three
months’ notice had been given.
2.6
The Company shall be entitled in its
absolute discretion (as an alternative to its entitlement pursuant
to sub-clause 2.4), instead of giving three months’ notice to
terminate the Employment as herein provided, to terminate the
Employment on shorter notice and to pay the Executive an amount
equal to the basic salary (calculated pursuant to Sub-clauses 3.1
and 3.2) to which the Executive would otherwise be entitled
hereunder if three months’ notice had been given less a sum
equivalent to such basic salary paid during any period of shorter
notice (whether or not the Executive has been sent on garden leave
during such notice period pursuant to clause 10).
4
2.7
If any payments are made to the
Executive pursuant to Schedule 2 of this agreement, they shall be
deemed to include, and shall not be in addition to, the payments
referred to in clauses 3.3 and 3.4 of this agreement and any salary
and benefits paid to the Executive during any period of garden
leave pursuant to clause 11 or any notice period given pursuant to
clauses 2.1, 2.5 or 2.6 of this agreement.
3.
Remuneration
3.1
By way of remuneration for his
services under this agreement the Company shall pay to the
Executive a salary at the rate of one hundred and forty thousand
pounds 140,000 GBP per annum (which shall be deemed to accrue from
day to day) payable in arrears by equal monthly instalments on the
last Business Day of each month, such salary being inclusive of any
fees to which the Executive may be entitled as a director of the
Company or any subsidiary.
3.2
On or about 1 January 2007 and on
each anniversary of such date during the continuance of this
agreement, the said salary payable under sub-clause 3.1 shall be
reviewed and the rate of such salary payable after the date of such
review shall be no less than that payable immediately
before.
3.3
The Executive shall in addition to
the basic salary payable under sub-clause 3.1 from time to time be
entitled to:
a)
a cost of living allowance of 11,000
GBP per annum (which shall be deemed to accrue from day to day)
payable in arrears by equal monthly instalments on the last
Business Day of each month and subject to the deduction of tax at
source; and
b)
to participate in any Management
Incentive Plan or other annual bonus plan for senior executives
approved by the Board at its absolute discretion with the approval
of the Compensation Committee.
3.4
In the event of any variation in the
remuneration payable to the Executive hereunder being made by
agreement between the parties hereto, such variation shall not
constitute a new agreement but subject to any express agreement to
the contrary the Employment shall continue subject in all respects
to the terms and conditions of this agreement with such variations
as aforesaid.
3.5
Upon termination for whatever reason
of the Employment, the Company shall be entitled to deduct from any
sum then payable to the Executive by reason of the Employment or
its termination the value of any claim the Company or any Group
Member may bona fide have against the Executive whether in respect
of any period before such termination or not, any monies which may
at that time be owed by the Executive to the Company or a Group
Member, including but not limited to:
a)
overpayment of wages;
b)
overpayment of expenses incurred by
the Executive in carrying out his duties;
c)
loans or advances on wages which the
Company may from time to time make to the Executive;
and
d)
a sum representing holiday taken in
excess of entitlement at the date of the termination of the
Employment.
5
By signing this agreement the
Executive agrees to such deductions.
3.5
The Executive shall not be entitled,
save as set out in the rules of any option scheme or plan, upon
termination of his employment hereunder, to receive any
compensation in respect of any option or other right to acquire
(whether by way of subscription or by way of transfer) shares in
the Company and which, but for such termination, he would or might
have been or become entitled to be granted or to exercise and shall
not claim any such compensation from the Company.
4.
Pensions and
benefits
4.1
Subject to any eligibility
requirements of the Scheme the Executive is entitled to become a
member of the Scheme and subject to its rules from time to time in
force. A copy of the Scheme Rules may be obtained from the
Company’s Finance Department.
4.2
A contracting out certificate is not
in force in relation to the Employment.
4.3
The Executive shall also receive the
following benefits:
a)
the Executive and his spouse and
dependents up to the earlier of age 18 or whilst in full-time
education, if any, shall be entitled to be a member of the
Company’s medical expenses scheme or such other medical
expenses scheme as the Company may make available from time to time
provided the Executive, his spouse and dependent children, if any,
meet the normal underwriting requirements of that scheme and is or
are accepted at the normal rates of premium;
b)
the Executive shall be entitled to
the benefit of life insurance cover of a sum insured equal to four
times the Executive’s annual basic salary payable subject to
any limits placed on such cover from time to time by HM Revenue
& Customs provided the Executive meets the normal underwriting
requirements of the scheme and is accepted at normal rates of
premium; and
c)
the Executive shall be entitled to
be a member of the Company’s permanent health insurance
scheme or of such other permanent health insurance scheme as the
Company may make available from time to time provided the Executive
meets the normal underwriting requirements of the scheme and is
accepted at the normal rates of premium.
Details of these benefits may be
obtained from the Company’s Finance Department.
4.4
The Company will ensure that the
Executive is covered under a directors and officers liability
insurance policy or policies during the Employment and while
potential liability exists after the termination of the Employment
for any reason, in the same amount and to the same extent during
the Employment as the Company covers its other directors and
officers and, after the termination of the Employment for any
reason in the same amount and to the same extent as the Company
covers any other former officers and former directors.
5.
Holidays and Holiday
Pay
5.1
In addition to the normal bank and
English public holidays and subject to sub-clause 6.2 the Executive
shall be entitled to 25 Business Days paid holiday during
each
6
Holiday Year and pro rata for any
shorter period. The Executive shall not be entitled to take holiday
incorporating more than 10 Business Days at any one time and all
holiday shall be taken at such time or times as may be agreed with
the Board.
5.2
The Executive may not without the
consent of the Board carry forward any unused part of his holiday
entitlement to a subsequent Holiday Year. If in any Holiday Year
the Executive does not, at the request of the Company, take his
full holiday entitlement, the Company shall at the Board’s
discretion either pay the Executive additional salary in lieu of
such unused holiday entitlement or agree to the Executive carrying
forward such unused holiday entitlement to the next Holiday
Year.
5.3
On termination of the Employment the
Executive shall be entitled to receive a payment representing
holiday accrued and as yet untaken on a pro rata basis for the
number of completed calendar months he has worked during the
current holiday year. If the Executive has taken holiday in excess
of his accrued entitlement he will be required to refund to the
Company a sum representing such unearned holiday. Such sum shall be
calculated at a rate of 1 / 365th of annual basic salary payable to
the Executive pursuant to clause 3.1 from time to time per day of
unearned holiday taken.
6.
Sickness/Incapacity
6.1
If the Executive shall be prevented
by illness accident or other incapacity from properly performing
his duties under this agreement he shall report this fact promptly
to the Board and if the Executive is so prevented for three or more
working days he shall provide an appropriate statement and
doctor’s certificate or a completed self certification form
in the manner required by the Company.
If the Executive shall be absent
from his duties under this agreement due to illness accident or
other incapacity duly certified in accordance with the provisions
of sub-clause 6.1, he shall be paid his full remuneration for the
first six months (whether or not such days are normal working days)
of such absence during any period or periods totalling 365 days
(whether or not such days are normal working days). Thereafter any
payment shall be subject to and in accordance with, the terms of
the Company’s permanent health insurance scheme and the cost
of living allowance and bonus payments referred to at sub-clause
3.3 shall not be payable.
6.2
If the Executive shall be so
incapacitated for a period or periods of six months in the
aggregate in any period of twelve months or the Board has reason to
believe that the Executive may be unable properly to perform his
duties for a continuous period of six months or more then the
Company shall be entitled to terminate this agreement by giving the
Executive no fewer than six months’ notice in writing less
the aggregate of any periods during which he has been paid salary
under sub-clause 6.1 during the twelve months prior to the giving
of such notice notwithstanding that the Executive is entitled to
benefit under the terms of the Company’s permanent health
insurance scheme. The length of the said notice shall in any event
be the minimum permitted by statute dependent upon the length of
the Executive’s service with the Group.
6.3
Statutory Sick Pay
(“SSP”) will be paid by the Company in accordance with
the legislation in force at the time of absence. Any payment of
remuneration under subclause 6.1 for a day of absence will
discharge the Company’s obligation to pay SSP for that
day.
7
6.4
The Executive will provide such
co-operation as the Company may reasonably request in order to
enable the Company to recover for itself any statutory sick pay
entitlement from the relevant Government authority.
6.5
If the Executive shall (in respect
of such illness accident or other incapacity) become entitled to a
state benefit instead of SSP, such benefit must be claimed by the
Executive personally and the Executive shall inform the
Company’s Finance Department in writing of the sum to which
he is entitled. The amount of such state benefit (up to a maximum
of the amount paid or payable to the Executive by virtue of
sub-clause 6.1 of this agreement) shall be paid to the Company by
the Executive forthwith upon his receipt of such state
benefit.
6.6
For the purposes of the government
SSP scheme the Executive’s “qualifying days” are
Monday to Friday inclusive.
6.7
The Company may require the
Executive during any period of illness or incapacity to undergo a
medical examination by a doctor nominated by the Company which
doctor shall be free to report the results of any such examination
to the Company or to the Executive’s personal
doctor.
7.
Duties
7.1
During the continuance of this
agreement the Executive shall faithfully and diligently perform
such duties for and hold such offices (whether relating to the
Company or to any Group Member) and exercise such powers as the
Board and/or the Chief Executive Officer of SITEL Corporation may
from time to time reasonably direct.
7.2
The Executive’s place of
employment shall be at the offices of the Company, SITEL House, 1
Canbury Park Road, Kingston-upon-Thames, KT2 6LZ UK or at
such other place within the United Kingdom, Europe, the United
States of America and such other countries as the Board and/or the
Chief Executive Officer may from time to time reasonably require.
In the event that the Company requires the Executive’s place
of employment to change it shall give the Executive reasonable
notice of such change. In addition, the Executive shall travel to
such parts of the world as the Board may direct or authorise. If
the Board requires the Executive to change his residence elsewhere
than within a thirty mile radius of London the Company will
reimburse such removal and other incidental expenses as the Board
considers fair and reasonable in the circumstances. If the Board
requires the Executive to work outside the United Kingdom for a
period of more than one month the Company will provide the
Executive with written details of any terms and conditions which
may apply to that work and his return to the United
Kingdom.
7.3
The Executive is required to render
services under this Agreement, and shall (subject to such
directions and restrictions as the Board may from time to time give
or impose) exercise and perform such powers and duties as the Board
shall from time to time determine subject to any directions and
restrictions from time to time given and imposed by the
Board.
7.4
The Executive shall:
a)
report to the Board and the Chief
Executive Officer of SITEL Corporation as and when required or to
such other person as the Board may direct;
8
b)
when requested to do so fully and
promptly give the Board and the Chief Executive Officer of SITEL
Corporation such explanations, information and assistance as it may
require relating to the transactions and affairs of the Company or
any Group Member; and
c)
well and faithfully serve the
Company and any Group Member if directed to do so by the Board and
use his best endeavours to promote and protect the interests of the
Company and any Group Member.
8.
Performance of
Duties
8.1
During his employment under this
Agreement the Executive shall (unless prevented by ill health and
except during such holidays as he shall be entitled to take as
provided below) devote his whole time, attention and abilities
during business hours and at such other hours as may reasonably be
necessary in the interests of the Company to the performance of his
duties under this Agreement and shall use his best endeavours to
promote and protect the interest and welfare of the Company and any
Group Member for which he performs duties and shall not without the
previous consent in writing of the Board be a director of or engage
in the business of any company, firm or business which is not a
Member of the Same Group as or owned by a Group Member. Exception
is made for Response Direct Publishing Limited, providing the
activities do not constitute a conflict of interest with the
activities of the Company or its Group Members.
8.2
The Executive shall work such hours
as the Board shall reasonably direct which shall be a minimum of 37
1/2 hours per working week (Monday to Friday inclusive) and such
other hours as may be necessary for the performance of his duties
under this Agreement. The Executive shall not be entitled to be
paid overtime. There are no normal hours of employment.
8.3
The Executive shall not when
carrying out and performing his duties under this agreement
assuming, create or incur any liability or obligation on behalf of
the Company or any Group Member or commit the Company or any Group
Member to expend in any way whatsoever (including a contingent
commitment) any sum of money to any third party nor enter into any
contract with any third party except in accordance with the
authority matrix approved from time to time by SITEL Corporation
and except as authorized from time to time by the Board.
9.
Working Time
The Executive acknowledges that he
holds a senior executive position with certain autonomous decision
taking powers and therefore is not subject to regulation 4(1)
of the Working Time Regulations 1998 but without prejudice to that
the Executive accepts that by signing this agreement he has agreed
that, insofar as it would apply to the Employment, regulation 4(1)
of the Working Time Regulations 1998 shall not apply unless the
Executive withdraws such agreement by giving to the Company not
less than three months prior notice in writing.
10.
Garden Leave
If written notice is given by the
Executive or the Company to terminate the Employment the Company
may notwithstanding any other terms of this agreement:
9
a)
require the Executive to continue to
perform such duties as the Board may direct so long as those duties
are not demeaning;
b)
require the Executive to perform no
duties; or
c)
exclude the Executive from any
premises of the Company or of any Group Member for which the
Executive performs duties
and in each case the Company will
continue to pay the Executive salary and provide all the other
benefits arising under this agreement during the period of
notice.
11.
Expenses
The Company shall reimburse to the
Executive all reasonable travelling and other expenses properly
incurred by him in the performance of his duties under this
agreement and in accordance with any policies in this regard
determined by the Company from time to time (other than expenses
incurred in travelling to and from the Company’s offices)
such reimbursement to be made as soon as reasonably practicable
provided that on request the Executive shall provide the Company
with such vouchers or other evidence of actual payment of such
expenses as the Company may reasonably require.
12.
Confidential Information and
Trade Secrets
12.1
The Executive acknowledges that in
the ordinary course of his employment under this agreement he will
be exposed to information about the business of the Company or any
Group Member and that of their suppliers and customers which
amounts to a trade secret, is confidential or is commercially
sensitive and which may not be readily available to others engaged
in a similar business to that of the Company or any Group
Member or to the general public and which if disclosed will be
liable to cause significant harm to the Company or any Group
Member.
12.2
The Executive shall keep secret and
shall not at any time either during his employment under this
agreement, or after its termination, for whatever reason, use
communicate or reveal to any person for the Executive’s own
or another’s benefit, any secret or confidential information
concerning the business, finances or organisation of the Company or
any Group Member, its suppliers or customers which shall have come
to his knowledge during the course of the Executive’s
employment under this agreement. The Executive shall also use his
best endeavours to prevent the publication or disclosure of any
such information.
12.3
For the purposes of this clause and
by way of illustration and not limitation information will prima
facie be secret and confidential if it is not in the public domain
and relates to:
a)
research and
developments;
b)
customers and details of their
particular requirements;
c)
castings, profit margins, discounts,
rebates and other financial information;
d)
marketing strategies and
tactics;
10
e)
current activities and current and
future plans relating to all or any of development, production or
sales including the timing of all or any such matters;
f)
the development of new
products;
g)
production or design secrets;
or
h)
technical, design or specifications
of the products of the Company or any Group Member.
12.4
The restrictions contained in this
clause shall not apply to:
a)
any disclosure or case authorized by
the Company or required in the ordinary and proper course of the
Executive’s employment under this agreement or as required by
the order of a court or tribunal of competent jurisdiction or an
appropriate regulatory authority; or
b)
any information which the Executive
can demonstrate was known to the Executive prior to the
commencement of the Executive’s employment by the Company or
is in the public domain otherwise than as a result of a breach of
this clause.
13.
Intellectual Property
Rights
13.1
For the purposes
of this clause, the following terms shall have the following
meanings:
“ Intellectual Property
” means patents, rights in designs, trade marks and service
marks (whether registered or unregistered) including any
applications for any of the foregoing, inventions, discoveries,
improvements, copyright, goodwill, database rights, rights in
confidential information and know-how and all other intellectual or
industrial property rights in any part of the world, including the
right to sue for past infringements; and
“ Originated ”
means originated, composed, written, invented, created, generated,
discovered, designed, developed, or manufactured whether solely or
with others.
13.2
The Executive
shall promptly disclose to the Company full details of all
Intellectual Property Originated by the Executive at any time
during the Employment (whether or not Originated during normal
working hours and whether before or after the date of this
agreement) that relates to, or is capable of being relevant to, the
Company’s or any of its Group Members’ present or
future business. Subject to the provisions of the Patents Act
1977, all such Intellectual Property shall vest in the Company
absolutely to the fullest extent permitted by law.
13.3
To the fullest
extent permitted by law the Executive waives (in favour of the
Company and all persons acquiring rights in anything Originated by
the Executive through the Company by assignment, licence or
otherwise) irrevocably and unconditionally any moral rights in any
part of the world (including any rights conferred by section 77-85
of the Copyright Designs and Patents Act 1988) that the Executive
has or may have in any of the Intellectual Property belonging to
the Company pursuant to clause 13.2.
11
13.4
The Executive
agrees, at the Company’s expense as to out-of-pocket
expenses, to execute all documents and do all acts and things as
may be required by the Company to:
a)
vest (where the Company is not the
first owner), or to confirm the vesting of, all right, title and
interest in and relating to the Intellectual Property in the
Company or its nominees in accordance with
clause 13.2;
b)
obtain or to maintain legal
protection of that Intellectual Property in the Company’s
na
