Director's Service Contract - Including Bonus & Share Option Arrangements
Directors’ Service Agreements are referred to as “Directors’ Service Contracts” in the Companies Act 2006 but the difference is in name only. This Director’s Service Contract – Including Bonus & Share Option Arrangements contains the basic terms and conditions which may be used by a company in retaining a director who is entitled to a bonus and to participate in the company’s share option scheme. Officially, a director is an officer of the company and not an employee. As such, he or she has no right to remuneration unless the company's articles state otherwise. In theory, therefore, he or she will not need an employment contract or agreement. However, the director may also be employed in another capacity - e.g. as a finance or managing director. In that instance, he or she will be considered an executive director and will require an employment contract.
This contract includes a payment in lieu of notice (PILON) provision at clause 14.5. Previously, a version of this employment contract was available without a PILON clause. This version has now been removed, as with effect from 6 April 2018, all PILONs, regardless of their nature, are to be treated as earnings subject to income tax and Class 1 NICs. Click here for more information.
This employment contract has a General Data Protection Regulation (GDPR)-compliant data processing clause. After 25 May 2018, employers must use this clause, as employers will not be able to rely on the existing generic consent clauses.
This director’s contract has been updated to provide for enhanced bonus provisions. This includes an operative clause within the body of the contract entitling the director to be paid a bonus with the detail attached as a schedule at the back of the contract. This bonus provision has been drafted on the basis that the director has a contractual entitlement to receive a bonus but that this is qualified by the director having to achieve certain personal performance targets each financial year before the bonus will be paid. This means that the bonus scheme itself forms part of the contract but that the company has reserved itself some flexibility by providing a framework to benchmark the payment of the bonus against.
Note that in this contract, the entitlement to a bonus has been carved out of the PILON clause, so that both within the main body of the contract and within the attached bonus schedule, the PILON clause only covers basic salary and there will be no liability for the employer to include any element of the director’s bonus within it.
The director also has a contractual entitlement to participate in the company’s share option scheme. This has been included but drafted deliberately broadly, because a company should avoid binding itself to provide a share benefits plan which it may not be able to deliver in future. In addition, if employees have a contractual right to a particular share plan, they may need to consent to any changes the company may subsequently wish to make to that plan.
This contract contains the following clauses:
1. Definitions and Interpretation
2. Appointment of the Executive
3. Duties of the Executive
4. Remuneration and Expenses
5. Pension & Benefits
6. Collective Agreements
8. Sickness and Medical Examination
9. Maternity Leave
10. Paternity Leave
11. Company Car
13. Intellectual Property
15. Non-Compulsory Retirement
16. Gardening Leave
17. Consequences of Termination
18. Amalgamation and Reconstruction
20.Staff Handbook & Employment Policies
22. Data Protection
23. Governing Law
24. Previous Agreements & Contracts
Schedule 1: Discipline & Grievance Policy & Procedures
Schedule 2: Bonus Schedule
Clause 19 of this contract contains three possible restrictive covenants; non-competition, non-solicitation of customers and non-solicitation of employees. The non-competition clause provides that for a period of time after termination of employment the employee will not compete with the company’s business. The non-solicitation clauses provide that for a period of time after termination of employment the employee will not deal with the company’s customers (with whom the employee has had dealings) and can’t poach employees of the company.
It is important that the restrictive covenants are no wider than is necessary to protect your “legitimate business interests”, otherwise they may be unenforceable. Please consider each restrictive covenant carefully, and remove any that are not relevant to your particular business and to the individual in question. For those remaining, insert time limits and geographical limits that are appropriate and reasonable to the nature of your business.
Please note that if the schedule is tailored to match the particular individual it is more likely to be deemed reasonable and therefore more likely to be enforceable. Using identically worded restrictive covenants for different employees without tailoring them to the individual may encourage a court to interpret the restrictive covenants as unreasonable.
A copy of every Director's Service Contract must be open to inspection with the company under section 228 of the Companies Act 2006 either at the company’s registered office or at the single alternative inspection location permitted under the Act (in the latter case, the company must notify the Company Registrar of the location of the Service Contracts). The copies must be retained by the company for inspection for at least one year following the date of termination or expiry of the Service Contract.
Under section 188 of the Companies Act 2006, Directors’ Service Contracts with a guaranteed term which is (or may be) longer than 2 years must be approved by an ordinary resolution of the shareholders of the company. Determining the length of the guaranteed period is subject to complex rules. The guaranteed term of a director’s employment is either:
(a) the period (if any) during which the director’s employment continues (or may be continued) except at the option of the company (whether under the original agreement or under a new agreement entered into in pursuance of the original agreement), and it cannot be terminated by the company by notice, or it can be terminated only in specified circumstances, or
(b) in the case of employment which can be terminated by the company by notice, the period of notice required to be given.
If the employment has a period within paragraph (a) and a period within paragraph (b), the aggregate of those periods will be the guaranteed term. If the company enters into a further service contract more than six months before the end of the guaranteed term of a director’s employment (except where the original contract gives the other party that right), then the unexpired period of the guaranteed term of the original contract will be added to the guaranteed term of the new contract.
Clauses with optional and alternative phrases:
Options and alternatives appear in blue font. The way in which this document is designed ensures that it will make sense with or without the optional clauses. Tailor this contract by removing all phrases and clauses which are not relevant to your business. Once you have finished, please remember to highlight the whole document and switch the font colour to black.
This Director’s Service Contract – Including Bonus & Share Option Arrangement is in open format. Fields should be completed where indicated.