Exhibit 10.16
DATED MAY 1998
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THE ASSOCIATED OCTEL COMPANY LIMITED
- and -
XXXX XXXXXXXX XXXXXX
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EXECUTIVE SERVICE AGREEMENT
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DATE: 22nd May 1998
PARTIES:
1. THE ASSOCIATED OCTEL COMPANY LIMITED (registered no: 344359) whose
registered office is at Xxxxx 0, 0xx Xxxxx, Xxxxxxxx Xxxxxx Xxxxx,
Xxxxxxxx Square, London. W1X 6DT ("the Company").
2. XXXX XXXXXXXX XXXXXX of Xxx Xxxx, Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxx,
XX0 0XX ("the Executive").
OPERATIVE PROVISIONS:
1. INTERPRETATION
2.
1.1. The headings and marginal headings to the Clauses are for convenience
only and have no legal effect.
1.2. Any reference in this Agreement to any Act or delegated legislation
includes any statutory modification or re-enactment of it or the
provision referred to.
1.3. In this Agreement:
"the Board" means the Board of Directors of the
Parent or the Company as the case
may be and includes any committee of
the Board duly appointed by it;
"Managing Director" means any person or
persons jointly holding such office
of the Company from time to time and
includes any person(s) exercising
substantially the functions of a
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Managing Director or Chief Executive
Officer of the Company;
"Confidential Information" includes but is not limited to all
any trade secrets, names and contact
details of customers and prospective
customers, purchasing and sales
agents, suppliers, prices charged to
or charged by the company, financial
and budget information, and any
other information of a confidential
nature relating to the Company or
any Associated Company or
information which has been given to
the Company or any Associated
Company by a third party under a
duty of confidence where such a duty
has been made known to the Executive
and which is not in the public
domain otherwise than by breach of
the Executive's duties of
confidentiality to the Company.
"Corporate Information" means all and any information
(whether or not recorded in
documentary form or on computer disc
or tape) relating to the business
methods, corporate plans, management
systems, finances, business
opportunities or research and
development projects of the Company
or any Associated Company.
"Marketing Information" means all and any information
(whether or not recorded in
documentary form or on computer disc
or tape) relating to the marketing
or sales of any product or service
of the Company or any Associated
Company including without limitation
sales targets and statistics, market
share and pricing statistics,
marketing surveys and plans, market
research reports,
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sales techniques, price lists,
discount structures, advertising and
promotional material, the names,
addresses, telephone numbers,
contact names and identities of
customers and potential customers of
and suppliers and potential
suppliers to the Company or any
Associated Company and the nature of
their business operations, their
requirements for any product or
service sold to or purchased by the
Company or any Associated Company
and all confidential aspects of
their business relationship with the
Company or any Associated Company.
"Associated Company" means a subsidiary and any other
company which is for the time being
a holding company (as defined by the
Company Acts 1985 Section 736) of
the Company or another subsidiary of
any such holding company.
"Pension Scheme" means The Associated Octel Company
Limited Pension Plan.
"Parent" means Octel Corp
2. APPOINTMENT AND DURATION
2.1. The Parent and the Company agree to employ the Executive and the
Executive hereby accepts employment with the Parent and the Company
upon the terms and conditions set forth in this Agreement.
2.2. The Company appoints the Executive and the Executive agrees to serve as
a Director or Officer of the Company and for any Associated Company or
in such other appointment as may from time to time be agreed. The
Executive accepts that the
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Company may at its discretion require him to perform other duties or
tasks not within the scope of his normal duties and the Executive
agrees to perform those duties or undertake those tasks as if they were
specifically required under this Agreement.
2.3. The appointment shall be deemed to have commenced on 22nd May 1998 and
shall continue (subject to earlier termination as provided in this
Agreement) until terminated by the Company giving to the Executive not
less than 12 calendar months prior notice or by the Executive giving to
the Company not less than 6 calendar months prior notice. The
Executive's period of continuous employment with the Company began on
13th October 1997.
2.4. With the prior consent of the Executive the Company may from time to
time appoint any other person or persons to act jointly with the
Executive in his appointment.
2.5. The Executive warrants that by virtue of entering into this Agreement
he will not be in breach of any express or implied terms or any
contract with or of any other obligation to any third party binding
upon him.
3. DUTIES OF THE EXECUTIVE
3.1. The Executive shall at all times during the period of this Agreement:
3.1.1. devote the whole of his time, attention and ability to the
duties of his appointment save for such reasonable time as
he may use for non-executive directorships of companies,
which he has been authorised in writing by the Board to
accept;
3.1.2. faithfully and diligently perform those duties and exercise
such powers consistent with them which are from time to time
assigned to or vested in him;
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3.1.3. obey all lawful and reasonable directions of the Board of
the Parent of the Company;
3.1.4. use his best endeavours to promote the interests of the
Company;
3.1.5. keep the Managing Director promptly and fully informed (in
writing if so requested) of his conduct of the business or
affairs of the Company or any Associated Company and provide
such explanations in connection therewith as the Managing
Director may require;
3.1.6. not at any time make any untrue or misleading statement
relating to the Company or any Associated Company;
3.1.7. inform the Managing Director promptly if he receives a
solicitation from a competitor or potential competitor
either on a personal or a business basis which could be
prejudicial to the best interests of the Company or its
Associated Companies.
4. PLACE OF WORK AND RESIDENCE
4.1. The Executive shall perform his duties at the Company's premises in
Ellesmere Port and/or such other place of business of the Company as
the Company may require whether inside or outside the United Kingdom
but the Company shall not without his prior consent require him to go
to or reside anywhere outside the United Kingdom except for occasional
visits in the ordinary course of his duties, such visits not normally
to exceed a period of one month.
4.2. The Executive shall at all times reside within a radius of 40 miles
from his place of work from time to time. If the Company shall change
his place of work such that the Executive has to relocate his residence
to remain within that radius, the Company shall reimburse him his
removal and other incidental expenses in accordance with its
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then current policy for relocation of Executives.
5. HOURS OF WORK
The Executive's hours of work are the normal hours of the Company from
9 am to 5.30 pm Monday to Friday each week together with such
additional hours as may be necessary so as properly to fulfill his
duties.
6. PAY
6.1. During his appointment the Company shall pay to the Executive:
6.1.1. a basic salary at the rate of (pound)150,000 per year which
shall accrue day to day and be payable by equal monthly
instalments in advance according to the published schedule
of payment dates. The salary shall be deemed to include any
fees receivable by the Executive as a Director or Officer of
the Company, or of any other Associated Company or other
company unincorporated body in which he holds office as
nominee or representative of the Company or an Associated
Company and
6.1.2. a bonus in accordance with the corporate bonus scheme set
out in Schedule 1.
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6.2. The Executive's basic salary shall be reviewed by the Board on 1st
January each year except in the first year and the rate of basic salary
may be increased by the Company on a discretionary basis with effect
from that date by such amount if any as it shall think fit. The first
such review of salaries will take place on 1st January 2000.
7. PENSION
7.1. The Executive shall be entitled to be and remain a member of the
Company Pension Scheme subject to the terms of its Deed and Rules from
time to time details of which are at Schedule 2. The Company shall be
entitled at any time to terminate the Pension Scheme or the Executive's
membership of it subject to providing him with the benefit of an
equivalent pension scheme ("the New Scheme") each and every benefit of
which shall not be less favourable than the benefits provided to the
Executive under the existing scheme and to ensuring that the Executive
is fully credited in the New Scheme for his pensionable service in the
existing scheme as if such pensionable service has been under the New
Scheme.
7.2. For the purposes of Part III of the Xxxxxxx Xxxxxxx Xxx 0000 there is a
contracting-out certificate in force.
7.3. The Company will provide additional pension benefits which after taking
account of the Executive's entitlement under the Company Pension
Scheme, shall be the equivalent of 1/40th of full basic pay (as
provided under Clause 6.1.1 above) irrespective of the Inland Revenue
Pensions Cap for each year of pensionable service. The Executive is
entitled to participate in The Associated Octel Funded Unapproved
Retirement Benefits Scheme (FURBS) and The Associated Octel Top Hat
Scheme (which together are hereinafter referred to as the Company
Pension Plans) by which such additional pension provision referred to
within this sub-Clause shall be provided.
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7.4. Without prejudice to Clause 7.3, should the Executive be prevented or
restricted in part or in whole by UK Inland Revenue restrictions from
drawing benefits otherwise payable under the Company Pension Plans, the
Company shall pay him further salary which after meeting income tax
obligations shall be equivalent to the cost of providing the pension
benefits denied him by such UK Inland Revenue restrictions.
7.5. The Executives accrued benefits under the Company Pension Plans shall
survive termination of this Agreement, irrespective of the cause or
reason for such termination.
8. INSURANCE BENEFITS
8.1. The Executive shall be entitled to participate at the Company's expense
in the Company's Permanent Health Insurance scheme which provides cover
for permanent sickness or disability. He will also be covered for
himself, his spouse and eligible children in the Company's BUPA Scheme,
subject to the rules of such schemes, details of which are available
from the HR Director. The Company may choose to terminate its agreement
with BUPA and provide at least equivalent benefits with an alternative
supplier.
9. CAR
9.1. Subject to the Executive holding a current full driving licence a car
of make, model and specification in line with current policy for
executives will be provided. The policy also includes an option to
trade up to a higher cost car, the additional cost of such to be borne
by the Executive. The policy is available from the HR Director. At the
option of the Company a non-pensionable cash allowance may be paid by
monthly instalments in arrears in lieu of the provision of a Company
car in line with current Company policy.
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9.2. The Company shall bear all standing and running expenses of the car
including fuel consumed during private use of the car throughout
Europe, including holiday usage and any additional insurance costs
incurred to permit the Executive to use the car outside the United
Kingdom for private purposes.
9.3. The Executive shall always comply with all regulations laid down by the
Company from time to time with respect to company cars; shall follow
the Company policy in the case of any accidents involving his Company
car, shall immediately report to the Company any driving convictions in
respect of which he is disqualified from driving a motor vehicle and,
on the termination of his appointment whether lawfully or unlawfully,
shall forthwith return his Company car to the Company, (except as
provided for in Clause 17.6.3).
10. EXPENSES
10.1. The Company shall reimburse to the Executive normally on a monthly
basis all travelling, hotel, entertainment and other expenses
reasonably incurred by him in the proper performance of his duties
subject to the Executive complying with such guidelines or regulations
issued by the Company from time to time in this respect and to the
production to the Company of such vouchers or other evidence of actual
payment of the expenses as the Company may reasonably require.
10.2. The Company will issue Company sponsored charge card(s) to the
Executive and he shall use such card(s) only for expenses reimbursable
under Clause 10.1 above, and shall return the card(s) to the Company
forthwith on the termination of his employment.
11. HOLIDAY
11.1. In addition to English public holidays the Executive is entitled to 30
working days paid holiday in each holiday year which runs from 1st
January to 31st December to
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be taken at such time or times as are agreed with the Managing
Director. The Executive may, with the consent of the HR Director, carry
forward up to 10 unused days from his holiday entitlement to be taken
by 31st March in the subsequent holiday year.
11.2. The Executive, with the written consent of the HR Director, may bank up
to 5 days per year of his holiday entitlement which can be taken
immediately prior to his normal (or early) retirement date.
Alternatively, the banked holiday days may be taken as sabbatical leave
with the permission of the Managing Director.
11.3. For the holiday year during which his appointment commences or
terminates, the Executive is entitled to two and a half working days
holiday for each calendar month of his employment by the Company during
that holiday year. On the termination of his appointment for whatever
reason, the Executive shall be entitled to pay in lieu of outstanding
holiday entitlement and shall be required to repay to the Company any
salary received for holiday taken in excess of his entitlement.
12. SICKNESS
12.1. If the Executive is absent because of sickness (including mental
disorder) or injury he shall report this fact forthwith to his
immediate Supervisor and if the Executive is so prevented for seven or
more consecutive days he shall provide a medical practitioner's
statement to the HR Director on the eighth day and weekly thereafter so
that the whole period of absence is certified by such statements.
Immediately following his return to work after a period of absence due
to incapacity the Executive shall complete a Self-Certification form
available from the HR Department detailing the reason for his absence.
This should be forwarded to the Staff Pay Office at Ellesmere Port by
the Executive on the first day of his return to work.
12.2. If the Executive shall be absent due to sickness (including mental
disorder) or injury duly certified in accordance with the provisions of
Clause 12.1 hereof, he shall be paid his full remuneration hereunder
for up to one month's absence in any period of
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twelve consecutive months and thereafter such remuneration, if any, as
the Managing Director shall determine from time to time provided that
such remuneration shall:-
12.2.1. never be less than the proceeds received by the Company in
respect of the Executive under the Company's permanent
health insurance scheme (after paying pension
contributions); and
12.2.2. be inclusive of any Statutory Sick Pay to which the
Executive is entitled under the provisions of the Social
Security Contributions and Benefits Xxx 0000 and any
Social Security Sickness Benefit or other benefits
recoverable by the Executive (whether or not recovered)
may be deducted therefrom.
12.3. If the sickness or injury of the Executive shall be or appear to be
occasioned by actionable negligence of a third party in respect of
which damages are or may be recoverable, the Executive shall
immediately notify the Company of that fact and of any claim,
compromise, settlement or judgment made or awarded in connection with
it and shall give to the Company all particulars the Company may
reasonably require and shall if required by the Company refund to the
Company that part of any damages recovered relating to loss of earnings
for the period of the incapacity as the Company may reasonably require,
provided that the amount to be refunded shall not exceed the amount of
damages or compensation recovered by him less any costs borne by the
Executive in connection with the recovery of such damages and or
compensation and shall not exceed the total remuneration paid to him by
way of salary in respect of the period of absence.
12.4. For Statutory Sick Pay purposes the Executive's qualifying days shall
be his normal working days.
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12.5. At any time during the period of his appointment the Executive shall at
the request and expense of the Company permit himself to be examined by
a registered medical practitioner to be selected by the Company and
shall authorise such medical practitioner to disclose to and discuss
with the Company's medical adviser the result of such examination and
any matters which arise from it in order that the Company's medical
adviser can notify the Company of any matters which, in his opinion,
might hinder or prevent the Executive (if during a period of
incapacity) from returning to work for any period or (in other
circumstances) from properly performing any duties of his appointment
at any time.
13. ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges:
13.1. that the Company or its Associated Companies possesses or will possess
a valuable body of Confidential Information; and
13.2. that the Company or its Associated Companies will give him access to
Confidential Information in order that he may carry out the duties of
his employment; and
13.3. that the duties of his employment include without limitation a duty of
trust and confidence and a duty to act at all times in the best
interests of the Company and any Associated Company; and
13.4. that his knowledge of Confidential Information directly benefits him by
enabling him to perform his management duties; and
13.5. that the disclosure of any Confidential Information to any competitor
of the Company or any Associated Company or to other third parties
would place the Company or any
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Associated Company at a serious competitive disadvantage and would
cause serious financial and other damage to their businesses; and
13.6. that the success of the business of the Company and its Associated
Companies depends in part on the Executive's success and the Directors
of the Company and its Associated Companies establishing business
relationships with clients similar to those established and maintained
by the Executive in the course of his employment.
14. RESTRICTIVE COVENANTS
14.1. The Executive shall not make use of, divulge or communicate to any
person (save in the performance of his duties during the course of his
employment) any trade secrets or other Confidential Information or
Marketing Information of or relating to the Company or any of its
Associated Companies which he may have received or obtained while in
the service of the Company or any of its Associated Companies. This
restriction shall continue to apply after the termination of his
employment without limit in point of time and shall cease to apply to
information ordered to be disclosed by a Court of competent
jurisdiction or otherwise required to be disclosed by law.
14.2. Restrictions on competition
14.2.1. Within this Clause 14 the following words shall have the
following meanings:
`Termination Date' shall mean the date of termination of
your employment in accordance with the terms of this
contract.
`Relevant Period' shall mean the twelve month period prior
to and ending with the Termination Date.
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`Restricted Customer' shall mean any person, firm, company
or other entity who was at any time in the relevant period a
customer of the Company or any Associated Company.
`Prospective Customer' shall mean any person, firm or
company who was at the Termination Date negotiating with the
Company or any Associated Company with a view to dealing
with the Company or any Associated Company as a customer.
`Prohibited Business' shall mean any business or activity
carried on by the Company or any Associated Company at the
Termination Date or at any time in the Relevant Period in
which you shall have been directly concerned in the course
of your employment at any time in the Relevant Period.
`Protected Supplier' shall mean any supplier or prospective
supplier of the Company or any Associated Company with whom
you shall have had dealings in the course of your employment
during the Relevant Period.
14.2.2. You shall not compete with the Company or any Associated
Company during the period of twelve months after the
Termination Date directly or indirectly on your own account
or on behalf of or in conjunction with any person, firm or
company or other organisation canvas or solicit or by any
other means seek to conduct, or conduct Prohibited Business
with any Restricted Customer with whom you shall have had
material dealings during the course of your duties hereunder
at any time in the Relevant Period or with whom and to your
knowledge any employee or agent of the Company or any
Associated Company shall have had material dealings in the
Relevant Period.
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14.2.3. You shall not compete with the Company or any Associated
Company during the period of twelve months after the
Termination Date directly or indirectly
on your own account or on behalf of or in conjunction with
any person, firm or company or other organisation canvas or
solicit or by any other means seek to conduct Prohibited
Business with or conduct Prohibited Business with any
prospective customer with whom you shall have had material
dealings in the course of your duties hereunder at any time
in the Relevant Period or with whom and to your knowledge
any employee or agent of the Company or any Associated
Company shall have had material dealings in the Relevant
Period.
14.2.4. You shall not during the period of twelve months after and
during a six month period prior to the Termination Date
directly or indirectly induce or seek to induce any employee
being a manager or a director of the Company or any
Associated Company engaged in the Prohibited Business who
was such an employee at the Termination Date and with whom
you shall during the Relevant Period have had material
dealings in the course of your duties hereunder to leave the
employment of the Company or any Associated Company whether
or not this would be a breach of contract on the part of
that employee.
14.2.5. You shall not during the period of twelve months after the
Termination Date directly or indirectly seek to entice away
from the Company or any Associated Company or otherwise
solicit or interfere with the relationship between the
Company or any Associated Company and any Protected
Supplier.
14.2.6. Each of the restrictions contained in this Clause 11 is
intended to be separate and severable. In the event that any
of the restrictions shall be held void but would be valid if
part of the wording thereof were deleted,
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such restriction shall apply with such deletion as may be
necessary to make it valid and effective.
14.2.7. The Company reserves the right to update and change these
conditions when circumstances dictate to reflect the
changing nature of its business and protectable interests.
14.3. Each of the restrictions in each of Clauses 14.2.2 to 14.2.7 is
considered by the parties to be reasonable in all the circumstances but
if any such restriction shall be held by any Court to be void as going
beyond what is reasonable in all the circumstances for the protection
of the interests of the Company, the said restriction shall apply with
such modifications as may be necessary to render it valid and
effective.
15. INTELLECTUAL PROPERTY
You will promptly disclose to the Company and keep confidential all
inventions, copyright works, designs or technical know how conceived or
made by you alone or with others in the course of your employment. You
will hold all such intellectual property in trust for the Company and
will do everything necessary or desirable at its expense to vest the
intellectual property fully in the Company and/or any Associated
Company and/or to secure patent or other appropriate forms of
protection for the intellectual property. Decisions as to the
protection or exploitation of any intellectual property shall be in the
absolute discretion of the Company.
16. COPYRIGHT
16.1. The Executive hereby assigns to the Company by way of future assignment
all copyright, design right and other intellectual property rights for
the full terms thereof throughout the world in respect of all copyright
works and designs originated, conceived, written or made by the
Executive (except only those works or designs originated, conceived,
written or made by the Executive wholly outside his normal
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working hours which are wholly unconnected with his employment or the
business of the Company) during the period of his employment by the
Company.
16.2. The Executive hereby irrevocably and unconditionally waives in favour
of the Company any and all moral rights conferred on him by Chapter 4
of Part I of the Copyright Designs and Patents Xxx 0000 for any work in
which copyright or design right is vested in the Company whether by
Clause 16.1 or otherwise.
16.3. The Executive shall, at the request and cost of the Company, do all
things necessary or desirable to substantiate the rights of the Company
or any Associated Company under Clauses 16.1 and/or 16.2.
17. TERMINATION OF AGREEMENT
17.1. Automatic Termination
This Agreement shall automatically terminate:
17.1.1. on the first day of the month following the Executive reaching
his 65th birthday; or
17.1.2. if the Executive becomes prohibited by law from being a
Director of the Parent; or
17.1.3. if he resigns his office as a Director of the Company; or
17.1.4. if the office of Director of the Company held by the Executive
is vacated pursuant to the Company's Articles of Association
save if the vacation shall be caused by illness (including
mental disorder) or injury; or
17.1.5. if the Executive otherwise ceases to be a Director of the
Company.
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17.2. Suspension
In order to investigate a complaint against the Executive of misconduct
the Company is entitled to suspend the Executive on full pay for so
long as may be necessary to carry out a proper investigation and hold a
disciplinary hearing.
17.3. Immediate Dismissal
The Company may by notice terminate this Agreement with immediate
effect if the Executive:
17.3.1. commits any act of gross misconduct or repeats or continues
(after written warning) any other serious breach of his
obligations under this Agreement; or
17.3.2. is guilty of any conduct which in the reasonable opinion of
the Board of the Parent brings him, or the Company or its
Associated Companies into disrepute; or
17.3.3. is convicted of any criminal offence punishable with more than
six months imprisonment (other than an offence under road
traffic legislation in the United Kingdom or elsewhere in
respect of which he is convicted and is sentenced to an
immediate term of imprisonment); or
17.3.4. commits any act of dishonesty whether relating to the Company,
any of its or their employees or otherwise; or
17.3.5. when he is a Director of the parent, becomes bankrupt or makes
any
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arrangement or composition with his creditors generally; or
17.3.6. is in the reasonable opinion of the Board of the parent
incompetent in the performance of his duties.
17.4. Dismissal on Short Notice
The Company may terminate this Agreement as follows notwithstanding
Clause 12.2 by not less than six months' prior notice given at any time
while the Executive is incapacitated by ill-health or accident from
performing his duties under this Agreement and has been so
incapacitated for a period or periods aggregating 100 days in the
preceding twelve months. Provided that:-
17.4.1. the Company shall withdraw any such notice if during the
currency of the notice the Executive returns to full time
duties and provides a medical practitioner's certificate
satisfactory to the Board to the effect that he has fully
recovered his health and that no recurrence of his illness or
incapacity can reasonably be anticipated;
17.4.2. the Company shall not exercise this right if the effect of so
doing shall be to deprive the Executive of any of the benefits
of the Permanent Health Insurance referred to in Clause 8.1.
17.5. Pay in lieu
Upon notice being tendered by either party to terminate this Agreement
or at any time thereafter during the currency of such notice the
Company shall be entitled to require the Executive to refrain from
carrying out some or all of his duties during the period of such notice
and to serve out such notice at his home or any of the Company's UK
premises.
17.6. Change of Control
17.6.1 Termination by Company Without Cause or By Executive for Good
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Reason After Change of Control.
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Notwithstanding any other provisions in this Agreement, if during the
three- year period following a "Change of Control", the Company
terminates the Executive without Cause or the Executive terminates his
employment for Good Reason, then the Company shall pay the Executive an
amount equal to (i) three (3) times the highest base salary in effect
during the term of this Agreement and (ii) three (3) times the highest
annual bonus paid during the term of this Agreement, and (iii) all
amounts accrued for (a) base salary through the termination date, (b)
any unpaid annual bonus for completed years, (c) accrued vacation
through the termination date, and (d) business expenses through the
termination date. The Company shall pay the Executive all amounts to
which he is entitled under this paragraph within 10 days after the
termination date. In addition, for purposes of determining the
Executive's entitlement to benefits under the Company's retirement
plans, the Company shall credit the Executive with three (3) additional
years of service and earnings as though he had continued to work
through such three-year period at the highest base salary and annual
bonus paid during the term of this Agreement. If the Company is
prohibited by law from crediting the Executive with such service and
earnings under any qualified plan, it shall make any such incremental
benefit available to him under a non-qualified supplemental plan. Where
such termination takes place before 3 years service, the annual bonus
multiplier will be assumed to be the target percentage for the
Executive.
17.6.2. Under the circumstances described in Clause 17.6.1, all stock
options previously granted to the Executive and not yet
expired, will become fully and immediately vested and
exercisable on the Termination Date and for 180 days
thereafter. During the first 45 days of trading, a notional
value of $15 per share will be assumed.
17.6.3. Under the circumstances described in Clause 17.6.1, the Company
will cause title to the Executive's currently allocated car, if
a car was provided by the Company at the date of the change of
control, to be transferred free of charge to the Executive
within ten days of the Termination Date.
17.6.4. For the purposes of Clause 17.6 "Change of Control" means a
change in
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control of a nature that would be required to be reported in
response to item 5
(f) of Schedule 14A of Regulation 14A promulgated under the
Securities Exchange Act of 1934 of the United States of
America, as amended ("Exchange Act") whether or not the Parent
or the Company is then subject to such reporting requirement;
provided that, without limitation, such a change in control
shall be deemed to have occurred if (a) any "person" or
"group" (as such terms are used in Section 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Parent or the Company
representing 20% or more of the combined voting power of the
Parent's or the Company's, respectively, then outstanding
securities (other than the Parent, the Company, any employee
benefit plan of the Company or the Parent); and, for purposes
of this Agreement, no change in control shall be deemed to
have occurred as a result of the "beneficial ownership", or
changes therein, of the Parent's or the Company's securities,
respectively, by any of the foregoing, (b) there shall be
consummated (i) any consolidation or merger of Parent or the
Company in which the Parent or the Company is not the
surviving or continuing corporation or pursuant to which
shares of the Parent's or the Company's Common Stock,
respectively, would be converted into cash, securities or
other property, other than a merger of the Parent or the
Company in which the holders of the Parent's Common Stock
immediately prior to the merger have (directly or indirectly)
at least a 70% ownership interest in the outstanding Common
Stock of the surviving corporation immediately after the
merger, or (ii) any sale, lease, exchange or other transfer
(in one transaction or a series of related transactions) of
all, or substantially all, of the assets of the Parent or the
Company, (c) the shareholders of the Parent approve any plan
or proposal for the liquidation or dissolution of the Parent,
or (d) as the result of, or in connection with, any cash
tender offer, exchange offer, merger or other business
combination, sale of assets, proxy or consent solicitation
(other than by the Board of
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the parent), contested election or substantial share
accumulation (a "Control Transaction"), the members of the
Board of the Parent immediately prior to the first public
announcement relating to such Control Transaction shall
thereafter cease to constitute a majority of the Board of the
Parent.
17.6.5. For the purposes of Clause 17.6 "Good Reason" exists if,
without the Executive's express written consent, (a) the
Executive is assigned duties materially inconsistent with his
present position, duties, responsibilities and status with the
Company and the Parent, (b) the Company reduces the
Executive's base salary as in effect on the effective date
hereof or as the same may be increased from time to time, (c)
the Company reduces the Executive's aggregate compensation and
incentive and benefit package, (d) the Company requires the
Executive regularly to perform his duties of employment beyond
a forty miles radius from the location of his current place of
employment, (e) the Company takes any other action which
materially and adversely changes the conditions or perquisites
of the Executive's employment as in effect at the time of the
Change of Control, (f) the Parent or the Company fails to
obtain a satisfactory agreement from any successor to assume
and agree to perform this Agreement, or (g) the Company
purports to terminate the Executive's employment other than
pursuant to a Notice of Termination which satisfies the
requirements of Clause 17.6 (and, for purposes of this
Agreement, no such purported termination shall be effective).
17.6.6. For the purposes of Clause 17.6 "Cause" means (a) the
Executive's conviction of any criminal violation involving
dishonesty, fraud or breach of trust, or (b) the Executive's
willful engagement in gross misconduct in the performance of
his duties that materially injures the Company. For purposes
of this definition, no act or failure to act on the
Executive's part shall be considered "willful" unless done, or
omitted to be done, by the Executive not in good faith and
without reasonable belief that his action or omission was in
the best interest of the Company or its Subsidiaries.
17.6.7. For the purposes of Clause 17.6 "Without Cause" means an
involuntary termination of the Executive's employment by the
Company other than for
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cause (defined in Clause 17.6.6.) or due to the Executive's
death or disability.
17.6.8. Default of Payment. Any payment not made within ten days after
------------------
it is due in accordance with this Agreement shall thereafter
bear interest, compounded annually, at an interest rate equal
to the prime rate from time to time in effect at the Barclays
Bank interest rate plus two percent (2%).
17.6.9. The Executive will not be required to mitigate the amount of
any payment or benefits provided for in Clauses 17.6.1, 17.6.2
and 17.6.3 by seeking other employment, nor shall those
amounts be reduced by any payments or benefits received after
the Termination Date from another employer.
17.7. Miscellaneous
On tendering notice by either party, or at any time thereafter, the
Executive shall at the request of the Company:
17.7.1. resign (without prejudice to any claims which the Executive
may have against any Company arising out of this Agreement or
the termination thereof) from all and any offices which he may
hold as a Director of the Company or any Associated Company
and from all other appointments or offices which he holds as
nominee or representative of the Company or any Associated
Company; and
17.7.2. transfer without payment to the Company or as the Company may
direct any qualifying shares provided by it to him; and if he
should fail to do so within seven days the Company is hereby
irrevocably authorised to appoint some person in his name and
on his behalf to sign any documents or do any things necessary
or requisite to effect such resignation(s) and/or transfer(s).
18. DISCIPLINARY AND GRIEVANCE PROCEDURE
18.1. The Executive is subject to the Company's disciplinary rules and
procedure, details of which are contained in the Company's Handbook,
but the Executive has no
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contractual entitlement in this respect.
18.2. If the Executive has any grievance relating to his employment (other
than one relating to a disciplinary decision) he should refer such
grievance to the Managing Director and if the grievance is not resolved
it will be referred to the Board of the Parent for resolution.
19. GENERAL
19.1. Collective Agreements
There are no collective agreements currently in force applicable to the
Executive's employment.
19.2. Reconstruction and amalgamation
If the Executive's employment hereunder shall be terminated by reason
of the liquidation of the Company for the purposes of reconstruction or
amalgamation then the Executive shall be offered employment with any
concern or undertaking resulting from such reconstruction or
amalgamation on terms and conditions not less favourable than the terms
of this Agreement as then in operation and the Executive shall have no
claim against the Company in respect of the termination of his
employment hereunder by reason of liquidation for such purposes.
19.3. Prior agreements
This Agreement sets out the entire agreement and understanding of the
parties and is in substitution for any previous contracts of employment
or for services between the Company or any of its Group Companies and
the Executive (which shall be deemed to have been terminated by mutual
consent).
19.4. Accrued rights
The expiration or termination of this Agreement however arising shall
not operate to
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affect such of the provisions of this Agreement as are expressed to
operate or have effect after then and shall be without prejudice to any
accrued rights or remedies of the parties.
19.5. Proper law
The validity construction and performance of this Agreement shall be
governed by English law.
19.6. Acceptance of jurisdiction
All disputes claims or proceedings between the parties relating to the
valid construction or performance of this Agreement shall be subject to
the non-exclusive jurisdiction of the High Court of Justice in England
and Wales ("the High Court") to which the parties irrevocably submit.
19.7. Notices
Any notice to be given by a party under this Agreement must be in
writing and must be given by delivery at or sending first class post or
other faster postal service, or facsimile transmission or other means
of telecommunication in permanent written form (provided the addressee
has facilities for receiving such transmissions) to the last known
postal address or relevant telecommunications number of the other
party. Where notice is given by sending in a prescribed manner it shall
be deemed to have been received when in the ordinary course of the
means of transmission it would be received by the addressee. To prove
the giving of a notice it shall be sufficient to show it was
despatched. A notice shall have effect from the sooner of its actual or
deemed receipt by the addressee.
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IN WITNESS whereof the Executive and the Company have executed this document as
a Deed the day and year first before written
SIGNED AND DELIVERED AS A DEED )
by the Executive in the presence of: )
EXECUTED AND DELIVERED AS A DEED )
by the Company acting by: )
Director: ....................................
Director/Secretary: ..........................
in the presence of: ..........................
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