Exhibit 1.5
DATED: 2nd April 2003
CABLE AND WIRELESS PLC
- and -
XXXXXXXXX XXXX
SERVICE AGREEMENT
Cable and Wireless plc
000 Xxxxxxxxx Xxxx
Xxxxxx
XX0X 0XX
20
THIS AGREEMENT is made on the 2nd day of April 2003
BETWEEN:
(1) CABLE AND WIRELESS PLC, a company registered in England (registered no.
238525) whose registered office is at 000 Xxxxxxxxx Xxxx, Xxxxxx XX0X
0XX ("the Company");
and
(2) Xxxxxxxxx Xxxx xx Xxxxx Xxxxxxx 00, 00000 Xxxxxx, Xxxxx ("the
Executive")
WHEREAS the Board of Directors of the Company have approved the terms of this
Agreement under which the Executive is to be employed
IT IS HEREBY AGREED as follows:-
1. Appointment
The Company shall employ the Executive and the Executive shall serve the Company
as Chief Executive Officer on and subject to the terms and conditions specified
herein ("the Employment").
2. Duration of employment
2.1 Subject to Clauses 17 and 18 below, the Employment may be terminated by
either party by giving two year's written notice to the other in the
first two years of this Agreement and one year's notice thereafter to
that effect to the other party. Such notice may be served at any time.
Notwithstanding the provisions of this Clause the Executive's employment
shall automatically terminate on the first day of the month immediately
following the month in which the Executive becomes 60 years of age.
2.2 The Company shall be entitled at its absolute discretion to terminate
the Executive's employment on no notice or less than full notice by
paying a sum equivalent to basic salary due under Clause 5 hereof in
lieu of the notice period or any part thereof unexpired at the time of
such payment.
3. Duties
3.1 The Executive shall be employed in the post of Chief Executive Officer
in which capacity he shall devote the whole of his time, attention and
skill as is necessary for the proper and efficient discharge of his
duties hereunder. He shall faithfully and diligently perform such duties
and exercise such powers consistent therewith as may reasonably be
assigned to or vested in him by the Chairman or the Board of Directors.
To the extent that is appropriate for an Executive Director he shall use
his best endeavours to further the interests of the Company and Group
Companies.
3.2 The Company reserves the right (a) to assign to the Executive duties of
a different nature either additional to, or instead of, those referred
to in Clause 3.1 above, and/or (b) to require the Executive to perform
services for, or hold any office in, any Group Company without further
remuneration (unless otherwise agreed). However, the Executive will not
be assigned duties or required to hold office or perform services which
he cannot reasonably perform, or which are inconsistent with his role as
the Chief Executive Officer of the Company.
3.3 The Executive shall comply with the reasonable and lawful orders of the
Chairman for the time being of the Company or given by or with the
authority of the Board of Directors and shall comply with all the
Company's rules, regulations, policies and procedures from time to time
in force, as are applicable to him.
3.4 The Executive will report to the Chairman for the time being of the
Company.
3.5 The Executive shall exercise reasonable diligence in order to refrain
from doing or permitting any matter which causes any regulatory
authority in the United Kingdom or elsewhere to withdraw permission or
in any way prevent the Company from employing or otherwise using the
services of the Executive.
3.6 The Executive shall not at any time, without the prior consent of the
Board:
3.6.1 incur on behalf of the Company or any Group Company any capital
expenditure in excess of such sum as may be authorised from time
to time by resolution of the Board; or
3.6.2 enter into on behalf of the Company or any Group Company any
commitment, contract or arrangement which is otherwise than in
the normal course of business or is outside the scope of his
normal duties or is of an unusual or onerous or long term
nature.
4. Exclusivity of service
4.1 The Executive shall not (without the prior written consent of the
Chairman during the Employment directly or indirectly be interested in,
engage 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) in
respect of:-
4.1.1 any business which is similar to or competitive with the
business of the Company or any Group Company;
4.1.2 any other business or activity which materially affects the
proper and efficient discharge of his duties hereunder.
PROVIDED THAT the Executive may hold up to 3% of any securities in a
company which is quoted on any recognised Stock Exchange.
4.2 Subject to any written regulations issued by the Company which are
applicable to him, the Executive or his Immediate Relatives shall not be
entitled to receive or obtain directly or indirectly any discount,
rebate, commission or other benefit in respect of any business
transacted (whether or not by him) by or on behalf of the Company or any
Group Company and if he, his Immediate Relatives or any company or
business entity in which he is interested, shall directly or indirectly
obtain any such discount, rebate, commission or other benefit he shall
forthwith account to the Company or Group Company for the amount
received or value of the benefit so obtained.
4.3 The Executive confirms that he has disclosed fully to the Company all
circumstances in respect of which there is, or there might be, a
conflict of interest between the Company or any Group Company, and the
Executive or his Immediate Relatives. He agrees to disclose fully to the
Company any such circumstances which may arise during the Employment.
5. Salary and benefits
5.1 The Company shall pay to the Executive a base salary of (pound)700,000
per annum, payable monthly in arrears by equal instalments, less any
deductions required by law or as agreed by the parties hereto. The
Remuneration Committee of the Board of Directors will review annually
the base salary in accordance with the policy (from time to time in
force) relating to the remuneration of the Directors and may in its
absolute discretion increase but not decrease the base salary by such
amount as it thinks fit. If the Remuneration Committee of the Board of
Directors elects to increase the amount of the base salary to be paid to
the Executive under this Clause 5.1, the Company shall endorse a note of
the increased rate of salary in Schedule 1 hereto.
5.2 The remuneration specified in Clause 5.1 above shall be inclusive of any
fees to which the Executive may be entitled as a Director of the Company
or of any Group Company.
5.3 Subject always to the discretion of the Board and the rules of any
scheme from time to time in force, the Executive may be entitled to
receive a bonus payment from time to time of up to 150% of the salary
set out at Clause 5.1 above. The payment of such bonus is conditional
upon the Executive remaining employed by the Company and not having
given or received notice of termination on or before the date upon which
the bonus is due to be paid.
5.4 The Executive is entitled to participate in the Company's private
medical insurance, long term invalidity benefit and personal accident
insurance schemes, from time to time in force, subject to the prevailing
terms and conditions of such policies and subject to the Executive's
health not being such as to prevent the Company from being able to
obtain such cover on reasonable terms. The Company reserves the right to
amend and change such schemes at its sole discretion providing it gives
the Executive 3 months' notice in writing and the replacement benefits
are of a similar nature. The provision of long term invalidity benefit
is without prejudice to the Company's right to terminate the Executive's
employment pursuant to Clause 2.1 or Clause 17.2 of this Agreement,
notwithstanding the fact that the termination of employment may serve to
terminate any existing or contingent entitlement to receive benefits
under the said scheme.
5.5 Whilst working at the Company or any Group Company location outside the
UK, medical cover will be provided in accordance with the Group's
International Health Scheme from time to time in force, subject to the
prevailing terms and conditions of such scheme and subject to the
Executive's health not being such as to prevent the Company from being
able to obtain such cover on reasonable terms. The Company reserves the
right to amend and change such scheme at its sole discretion.
6. Expenses
The Company shall reimburse to the Executive (against receipts or other
satisfactory evidence) all reasonable business expenses properly incurred and
defrayed by him in the course of the Employment, subject to the Company's
prevailing rules and policies relating to expenses.
7. Professional subscriptions
The Company will reimburse the Executive the cost of annual subscriptions in
respect of his membership of two relevant professional institutions.
8. Incapacity and medical examinations
8.1 Provided the Executive complies with the Company's standard rules on
notification of absence due to illness or injury (as amended from time
to time) and without prejudice to the Company's right to terminate the
employment pursuant to Clauses 2.1 and 17.2 of this Agreement, he shall
continue to be paid salary and receive his contractual benefits during
any absence from work due to illness or injury for an aggregate of 130
working days in any period of 12 months provided however that such
payment shall include any sickness or other benefit to which the
Executive is entitled under Social Security legislation for the time
being in force. Notwithstanding the foregoing, the Company may, in its
absolute discretion, decide the amount of remuneration for any period of
absence.
8.2 The Company may require the Executive to undergo examinations by medical
advisers appointed or approved by the Company and the Executive
authorises such advisers to disclose to the Company the results of such
examinations and to discuss with it any other matter arising from such
examinations that may affect the Executive's performance of his duties.
9. Hours of work
There are no fixed working hours. The Executive is required to work such hours
as are reasonably necessary for the efficient discharge of the duties of the
Employment. Overtime pay is not applicable. The Executive recognises that on
account of his autonomous decision taking powers, the duration of his working
time is not measured or predetermined and therefore he falls within the
exemption set out in Regulation 20 of the Working Time Regulations 1998 ("the
Regulations") and is thereby excluded from such Regulations as are referred to
in Regulation 20. Notwithstanding the understanding of the parties that the
Executive is an employee in respect of whom the said Regulation 20 applies, the
Executive agrees that, if that understanding is incorrect, the 48 hour current
average weekly working time contained in the Working Time Regulation ("the
Regulations") shall not apply to the Employment under this Agreement and in the
event the Executive wishes to withdraw his agreement to work beyond the said
average weekly working week he is required to give to the Company 3 months
written notice to that effect.
10. Deductions
The Company shall be entitled at any time during the Employment, or in any event
on termination, howsoever arising, to deduct from the Executive's remuneration
hereunder any monies properly due from him to the Company including but not
limited to any outstanding loans, advances, relocation expenses, the cost of
repairing any damage or loss to the Company's property caused by him (and of
receiving the same), excess holiday, and any other monies owed by him to the
Company. For the avoidance of doubt, this Clause shall not apply to any benefits
or monies which have accrued to the Executive under any pension scheme
applicable to him.
11. Statutory particulars and miscellaneous provisions
The statutory particulars of employment required by Section 1 of the Employment
Rights Xxx 0000 are contained in Schedule 2 hereto.
12. Place of work
12.1 The Executive's place of work shall be at the Company's Head Office. The
Company reserves the right to change the Executive's place of work to
any new location of the Company's Head Office in Europe. If at any time
the Company's Head Office is based outside Europe the Executive shall be
entitled to withhold his approval to his place of work being changed to
that new location. If any relocation of the Executive's place of work
reasonably requires him to relocate his primary private residence, he
shall be entitled to the benefits under the Company relocation policy
from time to time in force. In the performance of his duties hereunder,
the Executive may be required to travel both throughout and outside the
United Kingdom.
12.2 During the first three years of the appointment, the Company shall pay
the Executive an annual housing allowance sufficient to meet the costs
of renting and furnishing a suitable two bedroom flat in Central London
(such costs to be approved by the Board whose approval shall not be
unreasonably withheld), payable monthly in arrears by equal instalments,
less any deductions required by law or as agreed by the parties hereto.
The furnishings shall be the property of the Company.
13. Incentive Plans
The Executive shall be entitled, at the absolute discretion of the Board of
Directors, to participate in the following incentive plans, subject to the
prevailing terms and conditions of each plan:
Short Term Incentive Plan (STIP)
Deferred Short Term Incentive Plan (Deferred STIP)
Performance Share Plan (PSP)
Share Option Plan
14. Holidays
14.1 The Executive shall be entitled to receive his remuneration for all Bank
and Public holidays normally observed in England and a further 30
working days' holiday in each calendar year (from 1 January to 31
December). The Executive may only take his holiday at such times as are
agreed with the Chairman.
14.2 In the holiday years in which the Employment commences or terminates the
entitlement to holiday shall accrue on a pro rata basis for each
complete month of service.
14.3 The Company reserves the right, at its sole discretion, to require the
Executive to take any outstanding holiday during any notice period
(whether served by the Company or the Executive) or to make payment in
lieu thereof.
14.4 Holiday entitlement for one holiday year cannot be taken in subsequent
holiday years without the prior written consent of the Chairman.
15. Pension Scheme and death in service benefit
15.1 The Executive shall be entitled to participate in the LBP, subject to
its terms and conditions from time to time in force. The Company will
provide employer's pension contributions at the rate of 25% of basic
salary from time to time. The Executive will not be required to pay any
pension contributions. The Company will pay the maximum amount of
pension contributions permissible under Inland Revenue rules into the
LBP. The remainder of the 25% contribution will be paid into an
unapproved retirement benefit plan for the benefit of the Executive,
such plan to be in terms acceptable to the Executive.
15.2 The Company shall ensure that during the Employment it will effect and
maintain, at the Company's expense death-in-service benefit for the
Executive for an amount equal to four times the Executive's base salary
from time to time.
16. Reasonableness of Restrictions
16.1 The Executive recognises that, whilst performing his duties for the
Company, he will have access to and come into contact with trade secrets
and confidential information belonging to the Company or to Group
Companies and will obtain personal knowledge of and influence over its
or their customers and/or employees. The Executive therefore agrees that
the restrictions contained in Schedules 3 and 4 are reasonable and
necessary to protect the legitimate business interests of the Company
and its Group Companies both during and after the termination of his
Employment.
16.2 The Executive agrees that he will observe the obligations set out in
Schedules 3 and 4.
16.3 The Executive agrees that in the event of receiving from any person,
company, business entity or other organisation an offer of employment
either during the continuance of this Agreement or during the
continuance in force of any of the restrictions set out in Schedules 3
and 4, he will forthwith provide to such person, company, business
entity or other organisation making such an offer of employment a full
and accurate copy of this Agreement signed by the parties hereto.
17. Termination
17.1 Notwithstanding Clause 2 above, the Company may, by a majority decision
of the Board of Directors (excluding the Executive), terminate the
Employment with immediate effect (and without notice or compensation in
lieu thereof) if the Executive shall at any time:-
17.1.1 be guilty of dishonesty, or other gross misconduct, or gross
incompetence or wilful neglect of duty, or commit any other
serious breach of this Agreement; or
17.1.2 act in any manner (whether in the course of his duties or
otherwise) which does, or is likely to, bring him or the Company
or any Group Company into serious disrepute; or
17.1.3 become bankrupt, apply for or have made against him a receiving
order under Section 286 Insolvency Xxx 0000, or have any order
made against him to reach a voluntary arrangement as defined by
Section 253 of that Act; or
17.1.4 resign as a director of the Company or any Group Company
(without the written consent of the Board of Directors); or
17.1.5 be or become of unsound mind; or
17.1.6 be guilty of continuing unsatisfactory conduct or unsatisfactory
performance of his duties, after having received a written
warning from the Board of Directors relating to the same; or
17.1.7 be convicted of an indictable offence materially affecting his
suitability of continued employment; or
17.1.8 be or become prohibited by law from being a director, as a
result of any default by him.
Any delay by the Company in exercising such right to terminate shall not
constitute a waiver thereof. The provisions of this clause are without
prejudice to any rights which the Company may have at common law to
terminate the employment of the Executive on the grounds of a breach by
the Executive of his obligations as an employee.
17.2 The Company may terminate the Executive's employment on 12 months'
written notice, in the event that the Executive is incapacitated by
ill-health (physical or mental) or injury from fully performing his
duties for an aggregate period of 130 working days in any period of 12
consecutive months.
17.3 The Company shall be entitled to suspend the Executive on full pay and
benefits whilst carrying out an investigation into the Executive's
involvement in an allegation concerning any matter referred to in Clause
17.1 above. The period of such suspension shall not normally exceed 6
weeks.
17.4 On termination of the Employment, the Executive shall forthwith return
to the Company in accordance with its 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 or its Group Companies (including but
not limited to, computers, or other equipment, credit cards, keys and
passes) which are in his possession or under his control. The Executive
shall, if so required by the Company, confirm in writing his compliance
with his obligations under this Clause 17.4.
17.5 The Executive agrees that during any period of notice (whether given by
the Company or the Executive), the Company may at its absolute
discretion
17.5.1 require the Executive not to attend at work and/or not to
undertake all or any of his duties hereunder, and/or
17.5.2 require the Executive to remain at home on paid leave; and/or
17.5.3 exclude the Executive from the offices of the Company and/or any
Group Company; and/or
17.5.4 provide the Executive with alternative work of a broadly similar
nature to the work the Executive normally performs; and/or
17.5.5 require the Executive not to contact any of the customers,
suppliers, employees, agents or representatives of the Company
and/or any Group Company; and/or
17.5.6 appoint another person to the Executive's position;
provided always that this Clause will not be utilised by the Company for
any period in excess of 6 months and the Company shall continue to pay
the Executive's salary and contractual benefits and that the Board of
Directors gives written consent for the Executive to resign as a
director of the Company or any Group Company. During any such period of
"garden leave" the Executive shall remain an employee of the Company and
will remain bound by his duties of good faith, confidentiality and
exclusive service. The Executive agrees that during any period of notice
given by either party he will give the Company or such person nominated
by it all such assistance and co-operation in effecting a smooth and
orderly handover of his duties as the Company may require. The
termination of the Employment shall be without prejudice to any right
the Company may have in respect of any breach by the Executive of any of
the provisions of this Agreement which may have occurred prior to such
termination and shall not affect those terms of this Agreement which are
expressed to have effect after such termination.
17.6 In the event of termination of the Employment hereunder, the Executive
agrees that he will not at any time after such termination represent
himself as still having any connection with the Company or any Group
Company save as a former employee for the purpose of communicating with
prospective employers or complying with any applicable statutory
requirements.
18. Corporate Change
18.1 If at any time within six months following the happening of a Corporate
Change the Company (or its successors) takes any step other than
provided by this Agreement which
18.1.1 repudiates the Executive's employment by removing him from his
position as Chief Executive Officer,
the Executive shall have the right on giving one month's written notice
to terminate the Employment.
18.2 On the termination of the Executive's employment by virtue of him having
given notice to the Company under and in accordance with Clause 18.1 the
Executive shall be entitled conditionally upon undertaking that he will
comply with the obligations of Schedules 3 and 4 of this Agreement to
receive and the Company (or its successor) shall pay to the Executive
compensation of:
18.2.1 an amount equal to the Executive's salary (salary for this
purpose shall be calculated at the rate payable to the Executive
immediately prior to the date of the Corporate Change) by
reference to the period of notice required from the Company to
lawfully terminate the employment pursuant to Clause 2.1 above;
and
18.2.2 to the extent that on a fair exercise of discretion under the
rules of the STIP, the Executive would have been awarded a bonus
in respect of the year during which the employment terminates,
an amount in respect of bonus calculated on a pro rata basis up
to the date of the Executive's removal as Chief Executive
Officer.
18.3 The Termination Sum shall be paid to the Executive no later than 28 days
following the day on which the Executive's notice expires.
18.4 The Termination Sum shall be paid less any appropriate income tax and
employee national insurance.
18.5 The Termination Sum shall be accepted by the Executive in full and final
settlement of all claims the Executive may have against the Company
under the terms of this Agreement.
18.6 For the avoidance of doubt the Company acknowledges that the Termination
Sum shall not be reduced by any amounts paid to the Executive or
benefits received or to be received by the Executive from another
subsequent employer.
18.7 On termination of the Executive's employment by virtue of him having
given notice to the Company under and in accordance with Clause 18.1 the
Executive's entitlements under the STIP, the Deferred STIP, the PSP and
the Share Option Plan will be those applicable in the case of
termination of employment by reason of redundancy or early retirement
under the prevailing rules of each plan.
18.8 If the Executive exercises his right under this Clause at any time after
either the Company or the Executive has given notice to terminate the
Employment in accordance with the terms of this Agreement, only a
fraction of the Termination Sum will be payable. The fraction will be
the period of months from the date the Executive gives notice under
Clause 18.1 to the end of the original notice period divided by the
number of months (including part months) from actual termination up to
the earliest date upon which due notice could have expired having regard
to the provisions of clause 2.1.
19. Directorships
19.1 Unless otherwise requested in writing by the Board of Directors, the
Executive shall forthwith in writing resign from all directorships,
trusteeships and other offices he may hold from time to time with the
Company or any Group Company without compensation for loss of office
but, without removing the Executives right to claim for damages for
breach of contract or otherwise, in the event of:
19.1.1 the termination of the Employment; or
19.1.2 either party serving notice of termination of the Employment
under Clause 2 above or the Company serving on the Executive
notice of termination of the Employment under Clause 17.2 above;
or
19.1.3 the Company exercising its rights under Clause 17.5 above.
19.2 On the termination of the Employment, the Executive shall forthwith
transfer (without payment) to the Company (or as the Company may direct)
any qualifying or nominee shares provided by it or any third party in
any Group Company to him.
19.3 The Executive shall at the time of executing this Agreement appoint the
Company as his attorney by executing a power of attorney in the form set
out in Schedule 5 to do and sign in his name and on his behalf any
things and documents
19.3.1 as may be required under the constitution of each company to
make his resignation effective; and
19.3.2 as may otherwise be required under this Agreement
20. E-mail, Internet, Data Protection, Telephone Use & Personal Data
The Executive confirms that he agrees to the provisions set out in Schedule 6.
21. Liquidation for reconstruction or amalgamation
The Executive shall have no claim against the Company if the Employment
is terminated by reason of the liquidation of the Company for the
purposes of amalgamation or reconstruction provided that be is offered
employment with any concern or undertaking resulting from such
amalgamation or reconstruction on terms and conditions which taken as a
whole are not substantially less favourable than the terms of this
Agreement.
22. Insider dealing
The Executive is required during the Employment with the Company and any
period of employment by a Group Company, under this or any subsequent
Agreement, and for a period of twelve months after the termination of
the Employment by the Company or any Group Company to comply (and ensure
that his spouse and dependent children comply) with all applicable rules
of law, every regulation of The London Stock Exchange Limited and every
other market on which the Company is listed and any applicable Code of
Conduct of the Company in relation to dealings in shares, debentures or
other securities of the Company or any other Group Company and any
unpublished price sensitive information affecting the securities of any
other company. Further, in relation to overseas dealings he will also
comply with all laws of the State and all regulations of the Stock
Exchange market or dealing system in which such dealings take place.
Failure to comply with these obligations during the course of the
Employment will constitute gross misconduct.
23. Severability
The various provisions and sub-provisions of this Agreement and the
Schedules attached hereto are severable. If any provision or
sub-provision (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 or sub-provisions (or
identifiable parts thereof) in this Agreement or its Schedules.
24. Warranty
The Executive represents and warrants that he is not prevented by any
agreement, arrangement, contract, understanding, Court Order or
otherwise, which in any way directly or indirectly restricts or
prohibits him from fully performing the duties of the Employment, or any
of them, in accordance with the terms and conditions of this Agreement.
The Executive undertakes to indemnify and hold harmless the Company
against all claims costs damages and expenses which the Company may
incur in connection with any claim that the Executive is so restricted
or prohibited.
25. Notices
Any notice to be given hereunder may be delivered (a) in the case of the
Company by hand or first class post addressed to its Registered Office
for the time being and (b) in the case of the Executive, either to him
personally or by first class post to his last known address. Notices
served by post shall be deemed served 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.
26. Definitions
In this Agreement the following words and cognate expressions shall have the
meanings set out below:
26.1 a "Group Company" includes any firm, company, corporation or other
business entity:-
26.1.1 which is directly or indirectly controlled by the Company; or
26.1.2 which directly or indirectly controls the Company; or
26.1.3 which is directly or indirectly controlled by a third party who
also directly or indirectly controls the Company; or
26.1.4 which is the successor in title or assign of the firms,
companies, corporations or other business entity referred to in
this Clause 25.1; or
26.1.5 in which any other firm, company, corporation, or other business
entity referred to above has a beneficial ownership of or
controls 20% or more of the issued share capital of its capital
assets.
26.2 "The Board of Directors" shall mean the Board of Directors of the
Company.
26.3 "Executive Directors" shall mean the executive directors serving on the
Board of Directors and "Executive Director" shall mean an executive
director serving on the Board of Directors.
26.4 "Immediate Relatives" shall include husband, wife, common law spouse,
children, brothers, sisters, cousins, aunts, uncles, parents,
grandparents, and the aforesaid relatives by marriage.
26.5 "LBP" shall mean the Company's Lifetime Benefits Plan.
26.6 "Control" for the purpose of Clause 24.1 has the meaning ascribed by
Xxxxxxx 000 Xxxxx Xxx 0000.
26.7 "Corporate Change" shall mean:
26.7.1 If any person (i) obtains control of the Company (within the
meaning of section 840 of the Income and Corporation Taxes Act
1988) as a result of making a general offer to acquire the
shares in the Company, or (ii) having obtained such control
makes such an offer, or (iii) obtains such control following
sanction by the Court under section 425 of the Companies Xxx
0000 if a compromise or arrangement is proposed for the purpose
of or in connection with a scheme for the reconstruction of the
Company.
26.7.2 For the purposes of Clause 25.7.1 above, a person shall be
deemed to have obtained control of the Company if he and others
acting in concert with him have together obtained control of it
and for the avoidance of doubt in determining whether a person
obtains the control the existence or relinquishment to the
Special Share shall be ignored.
26.7.3 If any person becomes bound or entitled to acquire shares in the
Company under sections 428 to 430F of the Companies Act 1985.a
26.7.4 If the Company acquires any company, assets or business as a
result of which there is a change in boardroom control of the
Company or in the voting control of ordinary shareholders in the
Company; Control for the purposes of this sub clause shall mean
where the individuals who are directors of the Company
immediately prior to the Corporate Change shall cease for any
reason (except death or total or permanent incapacity) to
constitute a majority of the directors of the Company, or of any
successor to the Company, after the Corporate Change.
26.8 "Termination Sum" shall mean the aggregate of the compensation
calculated in accordance with the provisions of Clause 18.2.
27. Construction
27.1 The provisions of the Schedules 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 Agreement and shall be enforceable
accordingly.
27.2 The benefit of each agreement and obligation of the Executive under
Schedules 3 and/or 4 hereto of this Agreement may be assigned to and
enforced by all successors and assigns for the time being `of the
Company and such agreements and obligations shall operate and remain
binding notwithstanding the termination of this Agreement.
28. Prior agreements
This Agreement, together with the letter of 21 March 2003 from the Group
Director of Human Resources of the Company to the Executive, cancels and is in
substitution for all previous letters of engagement, agreements and arrangements
(whether oral or in writing) relating to the subject-matter hereof between the
Company and/or any Group Company and the Executive all of which shall be deemed
to have been terminated by mutual consent. This Agreement, together with the
letter of 21 March 2003 from the Group Director of Human Resources of the
Company to the Executive, constitutes the entire terms and conditions of the
Employment and no waiver or modification thereof shall be valid unless in
writing, signed by the parties and only to the extent therein set forth.
29. Governing law
This Agreement is governed by and construed in accordance with the laws of
England and the exclusive jurisdiction of the English Courts in relation to any
claim, dispute or matter arising out of or relating to this Agreement.
SCHEDULE 1
Variations of this Agreement
Increase in salary
By their respective signatures in Columns 4 and 5 set opposite the relevant
entry in Column 1 on the date stated in Column 3 the parties agree that the
Executive's base salary payable under Clause 5.1 is increased to the annual rate
stated in Column 1 with effect from the date stated in Column 2.
1 2 3 4 5
Revised Annual Rate Effective Date of Date of this Entry Signed on behalf of Signed by the
of Salary increase the Company Executive
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SCHEDULE 2
Statutory particulars of employment
1. Continuity of employment
The Executive's period of continuous employment commenced on [4th April 2003].
No other period of employment with any previous employer is regarded as
continuous with the employment of the Executive by the Company.
2. Grievance procedure
If the Executive has any grievance concerning any aspect of his Employment, be
should raise this at the first instance with the Chairman. If the matter is not
satisfactorily resolved, he may raise it with the Board of Directors, or a
sub-committee nominated by the Board of Directors.
3. Disciplinary procedure
The Company expects the highest standards of performance and conduct from the
members of its Board of Directors. Subject to any contractual disciplinary
procedure imposed by Statute, there is no disciplinary procedure applicable to
the Employment.
4. Pension scheme
There is no contracting-out certificate in force in relation to the Employment.
5. Collective agreements
There are no collective agreements with trade unions which directly affect the
terms and conditions of the Employment.
SCHEDULE 3
Confidentiality & intellectual property rights
1. Confidentiality
1.1 Subject to Paragraph 3 below, the Executive shall during the Employment
with the Company or any Group Company, and at all times (without limit)
after the termination thereof, directly or indirectly
1.1.1 not use or exploit for his own purposes or those of any other
person, company, business entity or other organisation
whatsoever; or
1.1.2 not disclose to any person, company, business entity or other
organisation whatsoever;
any trade secrets or confidential information relating or belonging to
the Company or its Group Companies including but not limited to any such
information relating to customers, customer lists or requirements, price
lists or pricing structures, marketing and information, Intellectual
Property, business plans or dealings, technical data, employees or
officers, financial information and plans, designs, formulae, product
lines, research activities, any document marked "Confidential", or any
information which the Executive has been told is "Confidential" or which
he might reasonably expect the Company would regard as "Confidential",
or any information which has been given to the Company or Group Company
in confidence by customers, suppliers or other persons.
2. Notes and memoranda
The Executive 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 Group Company. All such notes and memoranda made by the Executive
shall remain at all times the property of the Company.
3. Exceptions to paragraph 1
3.1 The obligations contained in Paragraph 1 shall not apply:-
3.1.1 to any information or knowledge which may subsequently come into
the public domain unless it is other than by way of unauthorised
disclosure (whether by the Executive or a third party);
3.1.2 to any act of the Executive in the proper performance of the
duties of the Employment;
3.1.3 where such use or disclosure has been properly authorised by the
Company;
3.1.4 to any information which the Executive is required to disclose
in accordance with Orders of a Court of competent jurisdiction
or any request properly made by any Statutory Regulatory
Authority.
3.1.5 to any information disclosed by a third party who to the
Executive's knowledge is not bound by a duty of confidence to
the Company or any Group Company
3.1.6 to information known to the Executive prior to his employment
hereunder
4. Third party confidentiality
The Company or its Group Companies may from time to time be entrusted with
confidential or proprietary information, trade secrets, Intellectual Property of
any other person, firm, company, corporation, business entity or other
organisation. In such circumstances, the Executive agrees to be bound by any
contractual undertakings or obligations which the Company or any Group Company
have agreed to impose on its or their employees in respect thereof. He further
agrees to enter into any confidentiality undertaking that the Company or any
Group Company may reasonably require, for the protection of its legitimate
interests, him to enter into with any third party in respect thereof.
5. Termination
On the termination of the Employment with the Company and/or any Group Company
or the Company exercising its rights under Clause 17.5, the Executive shall
forthwith account for and deliver up to the Company all documents, software,
disks and other information- storing medium (including all copies, summaries,
notes and reproductions thereof) in his possession, custody or control which
contain information or data:-
(a) belonging to the Company or any Group Company (or their
customers or suppliers) relating to the past, existing or
proposed business activities of the Company or any Group
Company; or
(b) belonging to any third party who has given such information to
the Company or any Group Company in confidence or on a
restricted basis.
6. Copyright
6.1 All records, documents, papers (including copies and summaries thereof)
and other copyright protected works made or acquired by the Executive in
the course of the Employment shall, together with all the worldwide
copyright and design rights in all such works, be and at all times
remain the absolute property of the Company.
6.2 The Executive hereby irrevocably and unconditionally waives all rights
granted by Chapter IV of Part I of the Copyright, Designs and Patents
Xxx 0000 that vest in him (whether before, on or after the date hereof)
in connection with his authorship of any copyright works in the course
of his Employment, wherever in the world enforceable including, without
limitation, the right to be identified as the author of any such works,
and the right not to have any such works subjected to derogatory
treatment.
7. Patents Xxx 0000
7.1 The Company and the Executive 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 respectively.
7.2 The Executive acknowledges and agrees that by virtue of the nature of
his duties and the responsibilities arising he has a special obligation
to further the interests of the Company within the meaning of Section
39(1)(b) of the Act.
7.3 Any invention, development, process, plan, design, formula,
specification, program or other matter or work whatsoever (collectively
"the Inventions") made, developed or discovered by the Executive, either
alone or in concert, whilst the Executive is employed by the Company
shall forthwith be disclosed to the Company and subject to Section 39 of
the Act shall belong to and be the absolute property of the Company.
7.4 With respect to those rights in the Inventions which do not belong to
the Company pursuant to Paragraph 7.3 (collectively "Executive Rights"),
the Executive at the request and cost of the Company (and
notwithstanding the termination of the Employment) shall forthwith
license or assign (as determined by the Company) to the Company the
Executive Rights and shall deliver to the Company all documents and
other materials relating to the Inventions. The Company shall pay to the
Executive such compensation for the licence or assignment as the Company
shall determine in its absolute discretion, subject to Section 40 of the
Act.
7.5 The Executive shall at the request and cost 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:-
7.5.1 to apply for and obtain in the sole name of the Company alone
(unless the Company otherwise directs) patent, registered
design, or other protection of any nature whatsoever in respect
of the Inventions in any country throughout the world and, when
so obtained or vested, to renew and maintain the same;
7.5.2 to resist any objection or opposition to obtaining, and any
petitions or applications for revocation of any such patent,
registered design or other protection; and
7.5.3 to bring any proceedings for infringement of any such patent,
registered design or other protection.
7.6 The Company shall decide, in its sole discretion, whenever to apply for
patent, registered design or other protection in respect of the
Inventions and reserves the right to work any of the Inventions as a
secret process.
8. Definitions
The definitions set out in Clause 25 of the Agreement shall also apply to this
Schedule 3 and for the purposes of this Schedule 3 the following words shall
have the meaning set out below:-
"Intellectual Property" includes letters patent, trade marks (whether registered
or unregistered), designs, utility models, copyright or applications for any of
the foregoing, discoveries, creations, inventions or improvements, know-how,
business names (whether or not registered).
SCHEDULE 4
Post-employment restraints
1. Non-competition
Without prejudice to Clause 4 of this Agreement, the Executive hereby agrees
that he shall not (without the written consent of the Board of Directors) during
the Restricted Period, within the Prohibited Area and whether on his own account
or in conjunction with or on behalf of any other person, firm, company or other
organisation, and whether as an employee, director, principal, agent, consultant
or in any other capacity whatsoever in competition with the Company directly or
indirectly (a) be employed by, or (b) be engaged in, or (c) perform services in
respect of, or (d) be concerned with:-
1.1 the research into, development, manufacture, supply or marketing
of any product which is of the same or similar type to any
product researched, or developed, or manufactured, or supplied,
or marketed by the Company during the two years immediately
preceding the commencement of the Restricted Period;
1.2 the development or provision of any services (including but not
limited to technical and product support, or consultancy or
customer services) which are of the same or similar type to any
services provided by the Company during the two years preceding
the commencement of the Restricted Period.
PROVIDED ALWAYS that the provisions of this Paragraph 1 shall apply only in
respect of those products or services (a) with which the Executive was either
personally concerned or for which he was responsible whilst employed by the
Company during the two years immediately preceding the commencement of the
Restricted Period, and (b) in respect of which he has had access to any
confidential information or trade secrets belonging to the Company or any Group
Company in the two years immediately preceding the commencement of the
Restricted Period.
2. Non-solicitation of customers
The Executive hereby agrees that he shall not during the Restricted Period,
whether on his own behalf or in conjunction with any person, company, business
entity or other organisation whatsoever in competition with the Company directly
or indirectly (a) solicit, or (b) assist in soliciting, or (c) accept, or (d)
facilitate the acceptance of, or (e) deal with, the custom or business of any
Customer or Prospective Customer:-
2.1 with whom the Executive has had personal contact or dealings on behalf
of the Company during the two years immediately preceding the
commencement of the Restricted Period;
2.2 with whom employees reporting to the Executive have had personal contact
or dealings on behalf of the Company during the two years immediately
preceding the commencement of the Restricted Period;
2.3 for whom the Executive was directly responsible during the two years
immediately preceding the commencement of the Restricted Period.
3. Non-solicitation of employees
The Executive hereby agrees that he will not during the Restricted Period,
either on his own account or in conjunction with or on behalf of any other
person, company, business entity, or other organisation whatsoever directly or
indirectly:-
3.1 induce, solicit, entice or procure, any person who is a Company Employee
to leave such employment where that person is:-
3.1.1 a Company Employee on the commencement of the Restricted Period;
or
3.1.2 had been a Company Employee in any part of the three months
immediately preceding the commencement of the Restricted Period
3.2 accept into employment or otherwise engage or use the services of any
person who:-
3.2.1 is a Company Employee on the commencement of the Restricted
Period; or
3.2.2 had been a Company Employee in any part of the three months
immediately preceding the commencement of the Restricted Period.
4. Non-interference with suppliers
The Executive hereby agrees that he will not during the Restricted Period,
either on his own account or on account of any other person, company, business
entity or other organisation whatsoever directly or indirectly (a) interfere, or
(b) seek to interfere, or (c) induce and/or incite another person, company,
business entity or other organisation to interfere, or (d) take steps to
interfere, with the continuance of supplies to the Company (or the terms
relating to such supplies) from any suppliers who have been supplying
components, products, material or services to the Company and/or any Group
Company at any time in the two years immediately preceding the commencement of
the Restricted Period.
5. Applicability to group companies
Paragraphs 1, 2, 3, 4 and 6 in this Schedule 4 shall also apply as though
references to "Group Company" were substituted for references to the "Company".
The obligations undertaken by the Executive pursuant to this Schedule 4 shall,
with respect to each Group 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 Group Company PROVIDED ALWAYS that this Paragraph 5 shall only apply to
those Group Companies (a) to whom the Executive gave his services, or (b) with
whom he was concerned, or (c) in respect of whom he was responsible during any
time in the two years immediately preceding the commencement of the Restricted
Period.
6. Definitions
For the purposes of this Schedule 4, the following words and cognate expressions
shall have the meanings set out below:
6.1 "Customer" shall mean any person, firm, company or other organisation
whatsoever to whom the Company has supplied goods or services.
6.2 "Prospective Customer" shall mean any person, firm, company or other
organisation whatsoever to whom the Company has offered to supply goods
or services, or to whom the Company has provided details of the terms on
which it would or might be willing to supply goods or services, or with
whom the Company has had any negotiations or discussions regarding the
possible supply of goods or services.
6.3 "Board of Directors" and "Group Company" shall have the meanings
ascribed in Clause 25 of the Agreement.
6.4 "Company" shall mean Cable and Wireless plc and its successors in title
and assigns.
6.5 "Prohibited Area" means:
6.5.1 the United Kingdom;
6.5.2 Japan;
6.5.3 the countries of the Caribbean;
6.5.4 Macau;
6.5.5 Panama
6.5.6 the United States; and
6.5.7 any other country in which prior to the commencement of the
Restricted Period the Company has developed significant and
material business interests in relation to the manufacture or
sale or supply of its products or services.
6.6 "Company Employee" means any person who was employed by (i) the Company
or (ii) any Group Company, and
6.6.1 with whom the Executive had personal contact or dealings in
performing his duties of his employment but excluding general
administrative employees; or
6.6.2 who reported to the Executive but excluding general
administrative employees; or
6.6.3 who bad material contact with customers or suppliers of the
Company in performing his or her duties of employment with the
Company or any Group Company (as applicable); or
6.6.4 who was a member of the Board of Directors or their direct
reports; or
6.6.5 who was a member of the senior management team of any Group
Company; or
6.6.6 whose job duties involved research and development to a material
extent.
6.7 "Restricted Period" shall have the meanings as set out in the
circumstances defined below:
6.7.1 In the event that the Company does not exercise its rights under
Clause 17.5 of this Agreement, the "Restricted Period" is 12
months immediately following the date when the Employment
hereunder terminates.
6.7.2 In the event that the Company does exercise its rights under
Clause 17.5 of this Agreement and the period of such suspension
of the Executive pursuant to Clause 17.5 is 12 months or less,
the "Restricted Period" shall be 12 months immediately following
the date of the start of such period of suspension under Clause
17.5.
7. Enforcement of Restrictions
While the restrictions in this Schedule 4 are considered by both parties to be
reasonable in all 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 or any Group Company but would be
valid if part of the wording thereof were deleted and/or the periods (if any)
thereof reduced, the said restrictions shall apply with such modifications as
may be necessary to make them valid and effective.
SCHEDULE 5
Power of Attorney
By this Power of Attorney made on [ ] 2003, I, Xxxxxxxxx Xxxx of Xxx Xxxxx 00,
Xxxxxxxx, 00000, Xxxxx in accordance with the terms of the service agreement
("the Service Agreement") HEREBY APPOINT the Company to act as my attorney with
authority in my name and on my behalf (so that words and expressions defined in
the Service Agreement shall have the same meaning herein) without removing any
of my rights to claim for damages or for breach of contract or otherwise:-
(a) on or after the Employment has terminated to do any things and sign any
documents as may be required under the constitution of the Company and
each Group Company to make my resignation as a director from those
companies effective; and
(b) to do any things and sign any documents as may be required under the
Service Agreement (including but not limited to the requirements of
Schedule 3);
(c) to appoint any substitute and to delegate to that substitute all or any
powers conferred by this Power of Attorney.
I declare that this Power of Attorney, having been given by me to secure my
obligations under Clause 19 of the Service Agreement, shall be irrevocable in
accordance with Section 4 of the Powers of Xxxxxxxx Xxx 0000.
IN WITNESS whereof this Power of Attorney has been duly executed.
EXECUTED as a Deed by )
)
In the presence of: )
Name:
Address:
Occupation:
Power of Attorney
By this Power of Attorney made on 3rd April 2003, I, Xxxxxxxxx Xxxx of Xxxxx
Xxxxxxx 00, 00000 Xxxxxx in accordance with the terms of the service agreement
("the Service Agreement") HEREBY APPOINT the Company to act as my attorney, with
authority in my name and on my behalf (so that words and expressions defined in
the Service Agreement shall have the same meaning herein) without removing any
of my rights to claim for damages or for breach of contract or otherwise:-
(a) on or after the Employment has terminated to do any things and sign any
documents as may be required under the constitution of the Company and
each Group Company to make my resignation as a director from those
companies effective; and
(b) to do any things and sign any documents as may be required under the
Service Agreement (including but not limited to the requirements of
Schedule 3);
(c) to appoint any substitute and to delegate to that substitute all or any
powers conferred by this Power of Attorney.
I declare that this Power of Attorney, having been given by me to secure my
obligations under Clause 19 of the Service Agreement, shall be irrevocable in
accordance with Section 4 of the Powers of Xxxxxxxx Xxx 0000.
IN WITNESS whereof this Power of Attorney has been duly executed.
EXECUTED as a Deed by )
XXXXXXXXX XXXX )
In the presence of: )
Name: Xxxxxx Xxxxxx
Address: 0 Xxxxxx Xxxxxx
Xxxxxxxx
Xxxxxx
X00 0XX
SCHEDULE 6
1. The Company has implemented an Electronic Communications Policy which
the Executive is obliged to comply with at all times during the
Executive's employment. In particular, the Executive's attention is
drawn to the sections of this Policy which indicate that the Company may
from time to time monitor the Executive's use of its communication
systems, namely its computer systems and telephones. The Executive
acknowledges that the Company has a legitimate interest in carrying out
this monitoring and that, by signing this Agreement, the Executive
consents to it.
2. The Executive agrees that:
2.1 personal data relating to the Executive which has been or is in the
future obtained by the Company or any Group Company may be held and
processed by the Company and any Group Company either by computer or
manually for any purpose relating to the administration, management and
operation of the Executive's employment, or in relation to the Company's
or any Group Company's legal obligations or business needs;
2.2 sensitive personal data relating to the Executive's racial or ethnic
origin (including the Executive's country of birth and nationality) or
any medical conditions or disability which the Executive may have or
relating to the Executive's religious or other beliefs or proceedings or
alleged offences concerning the Executive which have been or are in the
future obtained by the Company or any Group Company may also be held and
processed as above for the purposes of keeping under review equality of
opportunity and for ensuring the Company's compliance with any legal
obligations; and
2.3 due to the multinational nature of the Company's business and of any
Group Company's business, it may be necessary for one or more of the
Company's or any Group Company's overseas offices to have access to
information held about the Executive in the UK by the Company or any
Group Company. However, it is only intended by the Company that
information about the Executive will be used by it and any Group
Company's overseas offices for the purposes of enabling the Company and
any Group Company to deal with personnel issues connected with the
Executive's employment, including advising relevant statutory
authorities in order to obtain a work permit or VISA or assisting in the
Executive's secondment to an overseas office for payroll purposes. The
Executive agrees that the Company may, where appropriate, transfer
personal information about the Executive to its and any Group Company's
overseas offices.
IN WITNESS whereof the parties hereto have executed this Agreement as a Deed on
the day and year first above written.
EXECUTED as a Deed by )
CABLE AND WIRELESS plc )
acting by: )
Director/Secretary
Director
EXECUTED as a Deed by )
XXXXXXXXX XXXX )
In the presence of: )
Name:
Address:
Occupation:
