THIS DEED OF AMENDMENT is made on 24 February 2010 BETWEEN:
THIS DEED OF AMENDMENT is made
on 24 February 2010
BETWEEN:
(1) XXXXXXX PLC a company
incorporated in England with registered number 203531 and having its registered
office at East Xxxxxx Xxxxx, 00 Xxxxx Xxxxxxxx Xxxx, Xxxxxx XX00 0XX (“the Company”);
and
(2) XXXXX XXXXX whose address
is Xxxx 00, Xxxxxxxx, Xxxxxxxx, Xxxxxx XX00 0XX (“the Executive”);
each a
party and together the
parties.
WHEREAS:
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(A)
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The
Company and the Executive entered into a Service Agreement, executed as a
deed on 11 February, 2002, whereby the Company undertook to employ the
Executive as the Chief Executive Officer of the
Company.
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(B)
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The
parties now wish to make certain amendments to the form of the Service
Agreement and record such amendments in this
Deed.
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NOW
IT IS AGREED AS FOLLOWS:
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1.
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Interpretation
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1.1
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Capitalised
terms have, unless expressly defined in this Deed, the same meanings as in
the Service Agreement.
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1.2
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References
in this Deed to a clause, unless the context otherwise requires are
references to the clauses of the Service
Agreement.
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2.
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Amendments
to the Service Agreement
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2.1
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That
(2) of the Parties shall be amended by the deletion of “00 Xxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxx, X0X 0XX, Xxxxxx” and the substitution therefor
of “Xxxx 00, Xxxxxxxx, Xxxxxxxx, Xxxxxx XX00
0XX”.
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2.2
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That
the Interpretation clause at (I) shall be amended by the addition
following “In this Agreement” of the words “and for the purposes of any
document referred to in it”.
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2.3
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That
the definition of “Good Leaver” in the Interpretation clause be amended at
(b) by the deletion of “to treat the Appointment as terminated in
accordance with Clause 14.3” and the substitution therefor of “to treat
notice by the Company as having been given in accordance with Clause
14.1”.
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2.4
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That
the Interpretation clause at (II) be deleted in its entirety and replaced
by the following clause:
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“(II)
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The
expressions “subsidiary” and “holding company” have the meanings given to
them by Section 1159 of the Companies Xxx 0000; the expressions “parent
undertaking” and “subsidiary undertaking” have the meanings given to them
by Section 1162 of the Companies Xxx 0000; and the expression “financial
year” has the meaning given by Section 390 of the Companies Xxx
0000.”
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2.5
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That
the Interpretation clause at (III) be deleted in its entirety and replaced
by the following clause:
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“(III)
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The
provisions of Chapter 3 of the Disclosure and Transparency Rules apply in
determining for the purpose of Clauses 8 and 9 whether the Executive has
an interest in any shares or other
securities.”
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2.6
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That
recital (4) be amended by the deletion of “and
14”.
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2.7
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That
Clauses 2.2, 2.3 and 2.4 be deleted in their entirety and replaced by the
following clauses:
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“2.2
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The
Company (and any relevant Group Company) shall not be obliged to provide
work to the Executive at any time after notice of termination of the
Appointment shall have been given by either party under any of the
provisions of this Agreement and the Company may, in its discretion, take
any one or more of the following steps in respect of any unexpired period
of notice:
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(a)
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require
the Executive to comply with such reasonable conditions as it may specify
in relation to attending at, or remaining away from, the place(s) of
business of the Company and the Group
Companies;
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(b)
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withdraw
any powers vested in, or duties assigned to, the Executive;
or
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(c)
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require
the Executive to forthwith resign as a director of the Company and from
all offices held by him in any Group Company and from all other
appointments or offices which he holds as nominee or representative of the
Company or any Group Company and, if he fails so to do, the Company is
irrevocably authorised by the Executive to appoint some person in his name
and on his behalf to execute such documents and to do such other things as
are reasonably necessary to give effect to such
resignations,
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provided
that the Executive shall continue to receive his normal salary and
benefits until the Termination Date, and provided that the Executive shall
continue to be eligible to receive variable compensation and any other
awards or entitlements pursuant to this Agreement or the Appointment,
without any diminution or reduction resulting from the operation of this
clause. The Company shall procure that the Executive is treated as a Good
Leaver for such awards or entitlements for the purposes of any relevant
plans.
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2.3
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If
(other than in accordance with Clause 14.1 or pursuant to the request of
the Company in accordance with Clauses 2.2(c) or 13.4) the Executive shall
cease by reason of his voluntary resignation or default to be a director
of the Company he shall be deemed to be in repudiatory breach of this
agreement.
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2
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2.4
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Subject
to the Company's rights under Clause 2.2(c) of this Agreement, if during
the Appointment the Executive shall be removed from his office as a
director of the Company pursuant to any power in that behalf given to the
Board or to the members of the Company by law or by the Articles of
Association of the Company, or if he shall retire from his office as a
director of the Company by rotation and shall not be re-elected, such
event shall be deemed to be a repudiatory breach of this Agreement by the
Company.”
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2.8
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That
Clause 4.1(b) be deleted in its entirety and replaced with the following
clause:
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“(b)
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Variable
compensation calculated and awarded under the Xxxxxxx Annual Bonus
Incentive Scheme (the “Annual Bonus Incentive Plan"), the Xxxxxxx Interim
Bonus Plan or any other future variable compensation plan as may be agreed
with the Executive and is in operation within the Group. Under no
circumstances shall the variable compensation payable to the Executive in
one financial year under any of the plans referred to above exceed 100% of
the Executive’s fixed salary as at the end of that financial year. For the
avoidance of doubt, this limitation does not include any payments or
benefits listed in Clause 5 or the potential for an award of deferred
shares of 40% of fixed salary to vest at the end of three years (being the
Restricted Period under the Annual Bonus Incentive Plan) in accordance
with the Annual Bonus Incentive
Plan.”
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2.9
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That
Clause 4.5 be amended by the deletion of “or from any payment made
pursuant to Clause 14”.
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2.10
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That
Clause 5.1 be amended by the deletion of “Until notice of termination of
the Appointment is given under Clauses 2, 13 or 14” and the substitution
therefor of “Until the Termination
Date”.
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2.11
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That
Clause 6.3.7 be deleted in its entirety and replaced with the following
clause:
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“6.3.7
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(i)
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The
Executive was entitled to participate in the Company’s Executive Share
Option Plan. The Remuneration Committee considered the
Executive for awards and grants of options over shares with an aggregate
market value of £3m per annum up to the maximum permitted by the plan
rules from time to time with the last such grant being made in November
2004.
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(ii)
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The
Executive will be entitled to participate in the Xxxxxxx 2006 Performance
Share Plan. The Remuneration Committee will consider the Executive for
grants of awards under that plan up to the maximum permitted by the plan
rules from time to time. Provided the performance of the
Company so justifies, the Company will grant the Executive an annual award
over shares worth £4 million, which shall vest in accordance with
performance targets set under that Share Plan. The first such
award was made shortly after the annual general meeting in May 2006 but
was deemed to have been made in November 2005. Thereafter and
(subject as aforesaid) awards will be made in February (subject to any
restrictions under any applicable Company code of practice on dealing in
shares) of each calendar year during which the Appointment
continues.”
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3
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2.12
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That
Clause 7.1 be amended by the deletion of “30 days’ (ie 6 weeks)” and the
substitution therefor of “35 days (ie 7
weeks)”.
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2.13
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That
Clause 7.3 be amended by the deletion of “2.5 working days” and the
substitution therefor of “3 working
days”.
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2.14
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That
Clause 10.5 be deleted in its entirety and replaced with the following
clause:
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“10.5
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For
the avoidance of doubt the period of the restrictions in these Clauses
10.1, 10.2(a) to (d) and 10.3 shall be reduced by a period equal to the
period, if any, for which Clauses 2.2(a), (b) or (c) have been operated
pursuant to Clause 2.2 or 14.1, and/or for which the Executive is not in
receipt of Confidential Information in accordance with Clause
2.2.”
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2.15
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That
Clause 13.2 be deleted in its entirety and replaced with the following
clause:
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“13.2
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Unless
the Board otherwise permits and subject to the requirements of English
law, the Appointment shall, notwithstanding any other provision of this
Agreement, automatically terminate without notice at the end of the month
in which the Executive attains the age of 65 years, being the Company's
normal retirement age.”
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2.16
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That
Clause 14 be deleted in its entirety and replaced with the following
clause:
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“14
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Further termination
provisions
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14.1
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Provided
that he so notifies the Company in writing, the Executive shall be
entitled at his discretion to treat himself as having received the notice
from the Company required by Clause 2.1 and to be placed on garden leave
and perform no duties for the Group during any period of unexpired notice
and to be treated in accordance with Clause 2.2, if the Company or any
Group Company:
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14.1.1
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terminates
or purports to terminate the Appointment otherwise than in accordance with
Clause 2.1 or (where so entitled) Clause 13.1 or
13.2;
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14.1.2
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requires
the Executive to resign as a director otherwise than in accordance with
Clause 2.2 (c), or removes the Executive from the office of director or
fails so to reappoint him at any time when his retirement by rotation as a
director falls due other than in accordance with Clause 13.1 or 13.2;
or
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14.1.3
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reduces
his fixed salary or salary supplement or guaranteed bonus arrangements or
other cash benefits or varies adversely to him the bonus arrangements in
circumstances where the other directors are not affected by such a
variation; or
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4
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14.1.4
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materially
amends the Executive’s job title, status or duties (except to the extent
that it is entitled to do so pursuant to Clause 2.2);
or
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14.1.5
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commits
any other repudiatory breach of this
Agreement;
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but
this discretion shall be without prejudice to the Executive's right (as an
alternative to the above) to treat the Appointment as having terminated
with immediate effect on acceptance of the Company's
repudiatory breach of this
Agreement.”
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3.
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General
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3.1
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Save
as amended by this Deed, the Service Agreement shall remain in full force
and effect.
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3.2
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This
Deed may be executed in any number of counterparts and by each party on
separate counterparts. Each counterpart is an original, but all
counterparts shall together one and the same
instrument.
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3.3
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This
Deed and any non-contractual obligations arising out of or in connection
with this Deed shall be governed by, and interpreted in accordance with,
English law and the parties hereby irrevocably submit to the jurisdiction
of the English courts.
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IN WITNESS whereof the parties
hereto have caused this Deed to be duly executed on the day and year first above
written.
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Executed
as a deed by
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..........................................................
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Xxxxxxx
plc acting by a director and its secretary
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Director
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)
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............................................................
Secretary
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Signed
as a deed by Xxxxx Xxxxx in the presence of:
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)
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.............................................................
(Signature
of individual)
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Witness’s
signature:
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.............................................................
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Name
(print):
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.............................................................
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Occupation:
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.............................................................
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Address:
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.............................................................
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5
