EXHIBIT 10.17
DATE 16 NOVEMBER 1995
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XXXXX XXXXXXXX HOLDINGS LIMITED
XXXXXXX XXXXX XXXXX XXXX
SERVICE AGREEMENT
Macfarlanes
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
JRSD/519336/0681797.01
24 March 1998
Draft 1
CONTENTS
CLAUSE PAGE
1 Definitions and Interpretation 1
2 Appointment 4
3 Duties 5
4 Remuneration and Expenses 5
5 Place of Work 8
6 Hours of Work 9
7 Holidays 9
8 Illness 9
9 Confidentiality 11
10 Conflicts of Interest 12
11 Intellectual Property 13
12 Termination 14
13 Termination of Directorship and Group Reconstruction 17
14 Action to be taken upon Termination 18
15 Restrictions following Termination 18
16 Statutory Requirements 21
17 General 22
18 Notices 22
19 Governing Law and Jurisdiction 23
SERVICE AGREEMENT
DATE 16 November 1995
PARTIES
1 XXXXX XXXXXXXX HOLDINGS LIMITED (Registered No. 3114683) whose registered
office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxx XX0 0XX
("the Company")
2 XXXXXXX XXXXX XXXXX XXXX of 00 Xx Xxxxx' Xxxxxxx, Xxxxxx X00 0XX ("the
Employee")
AGREEMENT
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions shall have the
following meanings:-
THE BOARD: the Board of directors of the Company or any Committee of the
Board duly appointed by it;
CLIENT: any person, concern, undertaking, firm or body corporate or any
division, branch or establishment within any such entity responsible for
any particular product, service or brand which at any time during the
period of 12 months immediately preceding the Termination Date was a
customer or client of the Company or any Group Company or to whom the
Company has in the three months preceding the Termination Date made a
pitch or presentation or other such offer or request to provide services
(which has not been finally refused or rejected by the Client) and on or
for whose account or business the Employee personally worked or was
responsible or in relation to whom or whose products services business or
plans the Employee shall have obtained Confidential Information during
the periods preceding the Termination Date referred to above;
THE COMMENCEMENT DATE: the date hereof;
COMPETITOR: any person, concern, undertaking, firm or body
corporate which is engaged in or carries on within any part of
the Restricted Territories any business which competes with any
business of a kind carried on by the Company or by any Group
Company at the Termination Date in which the Employee has been
involved to a material extent on behalf of the Company or any
Group Company at any time within the 12 months immediately
preceding the Termination Date;
CONFIDENTIAL INFORMATION: all and any information not in the
public domain (or which comes into the public domain as a result
of unauthorised disclosure by the Employee or by any other person
who owes the Company or any Group Company an obligation of
confidentiality in respect of the information disclosed)
concerning the business and/or finances of the Company or any
Group Company or any partners or joint venturers of the Company
or any Group Company or any Client or Supplier, including,
without prejudice to the generality of the foregoing: trade
secrets; customer/client lists, contact details of Clients and
Suppliers and individuals within Clients and Suppliers;
technical information, know how, research and development;
financial projections, targets details and accounts; fee levels,
pricing policies, commissions and commission charges; budgets,
forecasts, reports, interpretations, records and corporate and
business plans; planned products and services; marketing and
advertising plans, requirements and materials; marketing surveys
and research reports and market share and pricing statistics;
and computer software and passwords;
DOCUMENTS: any document, disc, memory device, notebook, tape or
other medium whether or not eye-readable on which any information
may from time to time be recorded;
GROUP COMPANY: any company which is from time to time a holding
company (as defined by Section 736 Companies Act 1985 (as amended
by the Companies Act 1989)) of the Company, a subsidiary (as so
defined) of the Company or a subsidiary (as so defined) of a
holding company (as so defined) of the Company;
2
THE GROUP: the Company and all Group Companies;
INVENTION: any discovery, invention, secret process, improvement
in procedure, trade xxxx, design or copyright work made,
discovered or produced by the Employee in the course of his
employment and which is in connection with or in any way
affecting or relating to the business of the Company or any Group
Company or capable of being used or adapted for use in connection
with the business of the Company or any Group Company;
THE RESTRICTED TERRITORIES: any country in which the Group
carries on any part of its business, or in which it has provided
services to clients, being countries in which the Employee has to
a material extent direct or indirect dealings with clients or
prospective clients of the Company or any Group Company or in
which he has to a material extent been involved in market
research on behalf of the Company or any Group Company because of
his duties hereunder during the period of 12 months preceding the
Termination Date;
SUPPLIER: any person, concern, undertaking, firm or body
corporate or any readily identifiable division within any
concern, undertaking, firm or body corporate which at any time
during the period of 12 months immediately preceding the
Termination Date was a supplier to or the introducer of a
prospective customer or clients to the Company or any Group
Company and with which the Employee was involved personally in
dealings or negotiations on behalf of the Company or any Group
Company at any time during that period of 12 months immediately
preceding the termination date; and
TERMINATION DATE: the date on which the Employee's employment
under this Agreement is terminated.
1.2 In this Agreement (unless the context requires otherwise):-
1.2.1 any reference to any statute or statutory provision shall be
construed as including a reference to any modification, re-
enactment or extension of such statute or statutory provision for
the time being in force or to any subordinate legislation made
under the same;
3
1.2.2 the singular includes a reference to the plural and vice versa;
1.2.3 any reference to a Clause is to a Clause of this Agreement; and
1.2.4 "directly or indirectly" shall (without prejudice to the
generality of the expression) mean either alone or jointly with
any other person, firm or body corporate and whether on his own
account or in partnership with another or others or as the holder
of any interest in or as officer, employee or agent of or
consultant to any other person, firm or body corporate.
The headings contained in this Agreement are for the purposes of
convenience only and do not form part of and shall not affect the
construction of this Agreement or any part of it.
2 APPOINTMENT
The Company appoints the Employee and the Employee agrees to
serve the Company as Chairman subject to the terms and conditions
of this Agreement.
2.2 The appointment of the Employee shall (subject to the provisions
of Clause 12) be for an initial fixed period of two years from
the Commencement Date and shall continue thereafter unless and
until terminated by either party giving to the other not less
than six months' notice in writing expiring on the second
anniversary of the Commencement Date or at any time thereafter.
2.3 The Employee warrants that by entering into these or any other
arrangements made or to be made between the Company or any Group
Company and him he will not be in breach of any express or
implied terms of any contract with or other obligation to any
third party binding on him, including without limitation the
provisions of any restrictive covenants or confidentiality
obligations, arising out of any employment with any other
employer or former employer.
4
3 DUTIES
3.1 The Employee shall perform during his employment such duties and
exercise such powers in relation to the business of the Company
or of any Group Company as may from time to time be assigned to
or vested in him by the Board and shall at all times and in all
respects conform to and comply with the reasonable directions of
and regulations made by the Board. The Employee shall perform
such services for any Group Company (without further remuneration
except as set out in this Agreement) and shall accept such
offices in any such companies as the Board may require.
3.2 The Employee shall during his employment well and faithfully
serve the Company and the Group Companies and use his best
endeavours to promote, develop and extend their businesses and
interests and shall devote substantially all of his working time
and attention to the duties of his office.
3.3 The Employee shall carry out his duties and exercise his powers
jointly with any other person appointed by the Board to act
jointly with him.
4 REMUNERATION AND EXPENSES
4.1.1 The Company shall pay to the Employee by way of remuneration for
his services under this Agreement a salary at the rate of ONE
HUNDRED AND SEVENTY FIVE THOUSAND POUNDS ((Pounds)175,000) per
annum.
4.1.2 Such salary shall be:-
4.1.2.1 payable by equal monthly instalments in arrears on the
day appointed by the Board for the payment of employees'
salaries or pro rata where the Employee is only employed
hereunder during part of a month;
4.1.2.2 reviewed by the Board annually in June of each year and
shall be increased by an amount not less than the
increase in the retail prices index for the period under
review.
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4.1.2.3 the Employee shall not be entitled to any director's or
other fees from the Company or any Group Company in
respect of any office he may hold with the Company or as
nominee or representative of the Company or any Group
Company and accordingly either the Employee shall pay
over or procure to be paid over to the Company all such
fees received or receivable by him or his remuneration
shall be reduced pro tanto;
4.2 The Company shall reimburse the Employee for all reasonable
travelling, hotel and other out-of-pocket expenses which are
properly and necessarily incurred by him in or about the
performance of his duties and for which receipts or other
supporting documents (if so required) are provided to the
reasonable satisfaction of the Board.
4.3 In addition to the salary payable pursuant to Clause 4.1, the
Employee shall be entitled to a bonus calculated in the manner
set out in the Schedule hereto.
4.4 The Company shall provide and maintain (including the costs of
servicing, taxing, insuring and fuelling the same) two motor cars
one of which shall be a used BMW 750i or its equivalent and one
of which shall be of a value of not more than (Pounds)20,000
("the Second Car") for the use of the Employee for the
performance of his duties, such cars to be changed from time to
time in accordance with the Company's policy regarding
replacement cars. The Employee may at his option in each calendar
year elect to receive a cash sum equivalent to 30% of the value
of the Second Car to which he may be entitled from time to time,
instead of his entitlement to the Second Car. The Employee shall
be at liberty to use the cars for his private purposes but
shall:-
4.4.1 take good care of the cars and procure that the provisions and
conditions of any policy of insurance relating to the cars are
observed;
4.4.2 comply with any directions from time to time given by the Company
with regard to the cars provided by the Company for the use of
its staff;
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4.4.3 The Employee agrees and acknowledges that his entitlement to the
provision and use of the car subsists only so long as he
continues to be employed and shall return the car to the Company
immediately upon the termination of his employment under this
Agreement. The Employee shall not be entitled to retain the car
as a purported set-off or otherwise against any claim by the
Employee for damages from the Company.
4.4.4 If for any reason the Employee is disqualified from driving, the
Employee shall if the Company in its absolute discretion so
determines cease to be entitled to the use of the car during the
period of disqualification. The Employee shall upon demand return
the car to the Company and shall not be entitled to any
compensation or payment in lieu in this respect nor shall this
action constitute a breach of contract.
4.5 The Company shall provide the Employee with a telephone fitted to
each of the cars and shall be responsible for all outgoings in
respect of such telephones. In addition the Employee is required
to install and keep installed a telephone and fax machine in his
home to enable him to perform his duties and the Company shall be
responsible for all outgoings in respect of this telephone and
fax line.
4.6 The Employee and his spouse and children under 18 years of age
shall be entitled to participate in any private health care
insurance scheme providing benefits for medical and surgical
treatment which the Company may from time to time maintain
(subject always to the rules of such scheme).
4.7 The Employee shall be entitled to participate in any scheme of
Permanent Health and Disability Insurance which the Company may
from time to time maintain (subject always to the rules of such
scheme).
4.8 The Company shall during the Employee's employment under this
Agreement arrange and pay the premiums of a life insurance scheme
or policy which provides for payment to the Employee's nominated
dependents of a sum equal to the aggregate of (Pounds)500,000
plus four times the basic salary payable to the Employee under
Clause 4.1 as at the date of his death together with a pension
payable to his spouse equal to two-thirds of the pension to which
the Employee
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would have been entitled pursuant to the pension scheme referred
to in Clause 4.9.1.
4.9.1 The Employee shall be entitled to continue as a member of Xxxxx
Xxxxxxxx Limited pension scheme ("the Scheme") (subject to the
rules of the Scheme).
4.9.2 Provided that, and for so long as, the Employee shall continue as
a member of the Scheme (or any other similar scheme established
by the Company or the Group in replacement of the Scheme for the
purpose of providing pension benefits to employees) the Company
shall procure that the pension benefits to which the Employee
shall be entitled shall be calculated and paid as if those
benefits were not subject to the limitation on remuneration
imposed by Section 590C of the Income and Corporation Taxes Act
1988 (or any statutory modification or reenactment thereof, and
as amended from time to time). If and to the extent that the
Company is not permitted by law to provide those benefits through
the Scheme, the Company shall make such other arrangements as it
considers appropriate, whether by a funded or by an unfunded
unapproved arrangement, at its sole option. The pension benefits
referred to in this paragraph shall be based on the Employee's
basic salary only, and not upon any other element of his
remuneration or benefits.
4.9.3 If the Company in breach of this Agreement terminates the
Employee's employment prior to the expiry of the fixed term
referred to in Clause 2.2 or without due notice the Company shall
(subject to any limits imposed by law) ensure that the actuarial
value of the pension benefits to which the Employee is entitled
shall be equal to the amount which it would have been if the
employment had been terminated at the earliest date permitted by
this Agreement.
5 PLACE OF WORK
The Employee shall perform his duties at any place within the
United Kingdom as the Board may require from time to time for the
proper performance and exercise of his duties and powers and he
may be required to travel abroad on the business of the Company
or any Group Company.
8
6 HOURS OF WORK
There are no normal hours of work applicable to the Employee but
the Employee shall conform to such hours of work as may from time
to time reasonably be required of him and in any event he shall
work such hours as may be necessary for the proper performance of
his duties. The Employee shall not be entitled to receive any
additional remuneration for work outside his normal hours.
7 HOLIDAYS
7.1 In addition to the usual bank and other public holidays, the
Employee shall be entitled without loss of remuneration to six
weeks' holiday in each calendar year to be taken at such time or
times as may be approved by the Board. Any entitlement to holiday
remaining at the end of any calendar year shall lapse without
entitlement to payment in lieu thereof.
7.2 On the expiration or termination of this Agreement, the Employee
shall be entitled to holiday pay in respect of holiday accrued
pro rata to the number of complete months of service during the
calendar year of termination less holiday actually taken.
8 ILLNESS
8.1 The Employee shall continue to be paid during absence due to any
illness, accident or other incapacity (such payment to be
inclusive of any statutory sick pay or social security benefits
to which he may be entitled) for a total of up to 26 weeks.
Thereafter, for a further period of 26 weeks of absence due to
illness accident or other incapacity the Employee shall receive
half the normal remuneration payable to him under this Agreement
(inclusive of any statutory sick pay or social security benefits
to which he may be entitled) subject always to the provisions of
Clause 12.1.2.
8.2 Immediately following the Employee's return to work after a
period of absence of seven days or less which, or any part of
which, has not previously been authorised by the Company, the
Employee shall on request by the Company
9
complete a self-certification form in such form as the Company
may require stating the date of, and the reason for, the
Employee's absence, including details of sickness on non-working
days, as this information is required by the Company for
calculating statutory sick pay entitlement. Self-certification
forms will be retained in the Company's records.
8.3 For periods of absence of more than seven consecutive days, the
Employee shall, if so required by the Company, produce a doctor's
certificate verifying that any absence from work is due to
accident or ill-health and in default such absence shall be
deemed to be unjustified.
8.4 The Employee may be required at the reasonable request of the
Company during the course of his employment to attend a doctor or
clinic nominated by the Company for the purpose of a
comprehensive medical examination to determine his fitness for
continued employment and shall co-operate in ensuring the prompt
delivery of the relative report to the Company.
8.5 If the illness, accident or other incapacity 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 Employee
shall immediately notify the Board of that fact and of any claim,
compromise, settlement or judgment made or awarded in connection
with it, shall give to the Board all particulars the Board may
reasonably require and shall, if required by the Board, refund
all or such part of the sums paid to or for the benefit of the
Employee by way of salary, bonus or benefit during the relevant
period as the Board may reasonably determine provided that the
amount to be refunded shall not exceed the amount of damages or
compensation and interest thereon recovered by the Employee less
any costs borne by the Employee in connection with the recovery
of such damages or compensation and shall not exceed the total
remuneration paid to him by way of salary, bonus and benefits in
respect of the period of such illness, accident or other
incapacity.
9 CONFIDENTIALITY
9.1 Except in so far as is required for the proper performance of his
duties or as expressly authorised by the Company the Employee
shall at all times before and
10
after the Termination Date use his best endeavours to prevent the
publication, disclosure or unauthorised use of any Confidential
Information.
9.2 Except in so far as is required for the proper performance of his
duties or as expressly authorised by the Company the Employee
shall not at any time before or after the Termination Date:-
9.2.1 communicate or divulge to any person, concern, undertaking, firm
or body corporate or make any use of any Confidential Information
which he shall have come to know or have received or obtained at
any time by reason of or in connection with his service with the
Company or any Group Company;
9.2.2 copy or reproduce in any form or by or on any medium or device or
allow others access to or to copy or reproduce any Documents
containing any Confidential Information;
9.2.3 remove from the Company's or any Group Company's premises any
Documents containing any Confidential Information.
9.3 The Employee shall not be restricted from disclosing (but only to
the proper recipient) any Confidential Information which the
Employee is required to disclose by law or any order of a court
of competent jurisdiction or any relevant regulatory body of
competent jurisdiction, provided that the Employee shall, unless
prevented by law from so doing, have given prior written notice
to the Company of the requirement and of the information to be
disclosed and allowed the Company a reasonable opportunity to
apply to the relevant Court or body or prevent disclosure before
the Employee makes it; and
9.4 The Employee acknowledges that all Documents containing or
referring to Confidential Information at any time in the
Employee's control or possession are and shall at all times
remain the absolute property of the Company and the Employee
undertakes both during his employment and after the Termination
Date:
11
9.4.1 to exercise all due care and diligence to avoid any unauthorised
publication disclosure or use of any Confidential Information and any
Documents containing or referring to it;
9.4.2 whenever requested by the Company, to deliver up any Confidential
Information (including all Documents and all copies of Documents whether
or not lawfully made or obtained) or (at the Company's option) to delete
Confidential Information from any re-usable medium; and
9.4.3 to do such things and sign such documents at the expense of the Company
as shall be reasonably necessary to give effect to Clause 9.4 and/or to
provide evidence that Clause 9.4 has been complied with.
9.5 The Employee agrees that the restrictions set out in Clause 9 are without
prejudice to any other duties of confidentiality owed to the Company
whether express or implied and will remain in force after termination of
the employment.
10 CONFLICTS OF INTEREST
10.1 The Employee shall not without the previous written consent of the Board
during the course of his employment:-
10.1.1 directly or indirectly engage or be interested in any other business
undertaking or activity which would or might reasonably be expected to
compete or conflict with the business or interests for the time being of
the Company or any Group Company; or
10.1.2 directly or indirectly engage or be interested in any other business
undertaking or activity which would or might reasonably require him to
disclose any Confidential Information in breach of this Agreement;
10.1.3 directly or indirectly engage in or be interested in any business other
than that of the Company and the Group in a manner or to an extent which
would or might materially affect his performance of his duties as a
Director of the Company and
12
other Group Companies or his performance of his obligations under this
Agreement;
10.1.4 hold any directorship of any company
save that he may (but without prejudice to Clause 9) be interested as a
holder or beneficial owner solely for investment purposes of less than
five per cent. of any securities of any company (other than a Competitor)
whose securities are listed or quoted on any recognised investment
exchange in the United Kingdom.
11 INTELLECTUAL PROPERTY
11.1 The Employee shall immediately disclose any Invention to the Company and
the Invention shall belong to and be the absolute property of the Company
or such Group Company as the Company may nominate for the purpose.
11.2 The Employee shall, at the request and expense of the Company (or its
nominee), (whether during or after the termination of this Agreement)
apply or join in applying for patents, trade marks or other equivalent
protection in the United Kingdom or any other part of the world for any
Invention and complete all instruments and do all things necessary for
vesting patents, trade marks or other equivalent protection when obtained
and all right, title and interest to and in the same in the Company (or
its nominee) absolutely and as sole beneficial owner. The Employee hereby
irrevocably appoints the Company to be his attorney in his name and on his
behalf to complete any such instrument or do any such thing and generally
to use his name for the purpose of giving to the Company (or its nominee)
the full benefit of the provisions of this Clause.
11.3 Until such time as any Invention is fully vested in the Company pursuant
to Clause 11.2 the Employee shall hold all rights, title and interest in
the Invention in trust for the Company absolutely.
11.4 The Employee acknowledges and agrees that the Employee will not (whether
during or after his employment) apply or join in applying for any patent,
13
registered design, trade xxxx or other equivalent protection in respect of
any Invention without the prior written approval of the Company.
11.5 The Employee hereby waives all moral rights as defined in Chapter IV of
Part I of the Copyright Designs and Patents Xxx 0000 in any works
produced during the period of his employment with the Company in which
Copyright is vested in the Company or any Group Company whether by virtue
of this Clause or otherwise.
11.6 The Employee further acknowledges that having regard in particular to the
nature of the business of the Company and the nature of the Employee's
skills, qualifications and expertise:-
11.6.1 the normal duties of the Employee include the making of Inventions and
Inventions may result from the carrying out by the Employee of his
duties; and
11.6.2 because of the nature of the Employee's duties referred to in this Clause
and the responsibilities arising from the nature of those duties, the
Employee has a special obligation to further the interests of the
Company's undertaking.
12 TERMINATION
12.1 The employment of the Employee may be terminated by the Company without
notice or payment in lieu of notice:-
12.1.1 if the Employee shall become of unsound mind or be or become a patient
under the Mental Health Xxx 0000;
12.1.2 if the Employee shall at any time be prevented by illness or accident or
other incapacity from properly performing his duties for a period of
three consecutive months or for more than 90 working days in any
consecutive 12 months except where such incapacity arises out of the
performance of his duties or where the Employee is entitled, during his
employment to benefit under any such scheme as is referred to in Clause
4.7. In the event that any benefit is payable to the Employee under such
a scheme, the Company shall not for so long as such benefit continues to
be payable, terminate the employment of the Employee on
14
grounds of illness or incapacity, but any other remuneration payable to
the Employee under this Agreement shall be reduced by a sum equal to the
amount of such benefit as is paid under the said scheme;
12.1.3 if the Employee shall have committed either any serious breach or (after
warning) repeated or continued any material breach of his obligations
under this Agreement or persistently failed or neglected to carry out his
duties under this Agreement or failed to maintain a satisfactory standard
of conduct or performance within a reasonable time after receiving
written warning from the Board relating to the Employee's conduct and/or
performance;
12.1.4 if the Employee shall have been guilty of conduct (whether or not in the
course of his employment) tending to bring himself, the Company or any
Group Company into disrepute or otherwise to affect prejudicially the
interests of the Company or any Group Company;
12.1.5 if the Employee shall have committed an act of bankruptcy or compounded
with his creditors generally;
12.1.6 if the Employee is convicted of any criminal offence (excluding an
offence under the road traffic legislation in the United Kingdom or
elsewhere in respect of which a custodial sentence is not imposed on the
Employee);
12.1.7 if the Employee shall be or become prohibited by law from being a
director of any company; or
12.1.8 if for any reason the Employee shall (otherwise than at the request of
the Company) resign as a director of the Company.
12.2 If a disciplinary matter arises involving the Employee, the Employee may
be suspended on such terms and conditions as the Board of Directors may
reasonably determine provided that the Employee's salary and benefits
shall not be reduced or withheld.
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12.3 The employment of the Employee may be terminated by either party giving
to the other notice in accordance with Clause 2.2 above.
12.4 Notwithstanding any other provisions, the employment of the Employee
shall automatically terminate when the Employee reaches his retirement
date on his 65th birthday.
12.5 The termination by the Company of the Employee's employment shall be
without prejudice to any claim which the Company may have for damages
arising from any breach by the Employee giving rise to such termination.
12.6 In the event that either party gives notice to terminate the employment
the Employee agrees:-
12.6.1 that for a period not exceeding the period of notice in Clause 2.2 above
the Board may in its absolute discretion require the Employee to perform
only such duties as it may allocate to him or not to perform any of his
duties and may require him not to have any contact with Clients of the
Company or any Group Company nor any contact (other than purely social
contact) with such employees of the Company and any Group Company as the
Board shall determine and/or may exclude him from any premises of the
Company or of any Group Company (without providing any reason therefor);
and
12.6.2 that such action taken on the part of the Company shall not constitute a
breach of this Agreement of any kind whatsoever nor shall the Employee
have any claim against the Company in respect of any such action;
PROVIDED ALWAYS that throughout the period of any such action the
Employee's salary and contractual benefits shall not cease to be paid or
provided (unless and until his employment shall be terminated).
12.7 The Company may elect to terminate the contract immediately and make a
payment in lieu of the remainder of the fixed term of this Agreement or
any applicable period of notice. The Employee is required to mitigate his
loss where he is dismissed and any payment in lieu of notice may be
reduced to take account
16
of mitigation and to take account of the payment or any part of it being
paid earlier than the salary or benefits to which he would otherwise be
entitled under this Agreement.
12.8 If the Employee fails to make himself available for work during any
period of notice of termination of the Employee's employment, other than
at the request of the Company pursuant to clause 12.6 or with the
permission of the Board, the Employee shall not be entitled to any
payment of salary or to any benefits in respect of such absence.
13 TERMINATION OF DIRECTORSHIP AND GROUP RECONSTRUCTION
13.1 If for any reason the Employee shall either:-
13.1.1 resign as a director of the Company; or
13.1.2 be removed from office as a director of the Company
then his employment shall automatically terminate but without prejudice
to any claim which either party may have against the other in respect of
such termination or any breach of contract or duty giving rise to it.
13.2 If before the expiration or termination of this Agreement, the employment
of the Employee shall be terminated by reason of the liquidation of the
Company for the purpose of reconstruction or amalgamation and he shall be
offered employment with any concern or undertaking resulting from such
reconstruction or amalgamation on terms and conditions no less favourable
(financially and in personal status) than the terms then the Employee
shall have no claim against the Company in respect of the termination of
his employment for such reason.
14 ACTION TO BE TAKEN UPON TERMINATION
Upon the Termination Date:-
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14.1 the Employee shall forthwith resign without claim for compensation for
loss of office (but without prejudice to any claim he may have against
the Company arising out of any breach of this Agreement by the Company)
from such offices held by him in the Company and any of the Group
Companies and from any other offices he may hold as nominee or
representative of the Company or any Group Company and, should he fail to
do so, the Company is hereby irrevocably authorised to appoint some
person in his name and on his behalf to sign any documents and do any
things necessary or requisite to give effect to such resignations; and
14.2 the Employee shall immediately deliver to the Company all Documents and
copies of Documents (whether or not lawfully obtained), keys, security
passes, telephones, faxes, cars, credit cards and other property of the
Company or any Group Company or any of their respective customers or
clients in his possession or under his control and the Employee shall not
retain any copies of the Company's Documents and the Employee shall at
the Company's request delete all Confidential Information from any re-
usable medium.
15 RESTRICTIONS FOLLOWING TERMINATION
15.1 The Employee acknowledges that during the course of his employment under
this Agreement he will be privy to Confidential Information and he will
make maintain and develop personal knowledge of, influence over and
valuable personal contacts with Clients, Suppliers, staff and third
parties. He therefore covenants with the Company that save with the
previous express written consent of the Company he will not in the
Restricted Territories for the period of two years following the
Termination Date directly or indirectly on his own behalf or on behalf of
any other person, concern, undertaking, firm or body corporate:-
15.1.1 deal with in competition with the Company, seek employment or engagement
with, be employed or engaged by or engage in business with or be in any
way interested in or connected with any Competitor;
15.1.2 deal with, seek employment or engagement with, be employed or engaged by
or engage in business with or work on any account or business of any
Client for the
18
purpose of providing to that Client services which are the same as or
similar to those which he has been involved in providing to that Client
in the 12 months preceding the Termination Date;
15.1.3 solicit or endeavour to entice away business from any Client for the
purpose of providing to that Client services which are the same as or
similar to those which he has been involved in providing to that Client
in the 12 months preceding the Termination Date;
15.1.4 interfere or seek to interfere with contractual or other trade relations
between the Company or any Group Company and any of its or their
Suppliers;
15.1.5 solicit or endeavour to entice away from the Company or any Group Company
any employee, officer or consultant of the Company or any Group Company
known personally to the Employee other than secretarial, clerical or
junior employees (whether or not such person would commit any breach of
his contract of employment or engagement by reason of leaving the service
of such company or knowingly employ, assist in or procure the employment
by any other person, concern, undertaking, firm or body corporate of any
such person;
15.1.6 communicate to any person, concern, undertaking, firm or body corporate
anything which is intended to or which will or may damage the reputation
or good standing of the Company or any Group Company.
15.2 The Employee will not at any time following the Termination Date, save
with the previous express written consent of the Company, represent
himself as being in any way connected with or interested in the business
of the Company or any Group Company.
15.3 In the event that the Company requires the Employee not to perform any of
his duties and/or exclude the Employee from the Company's premises
("garden leave") as set out in Clause 12.6 above for some or all of any
period of notice, the period of the post termination restrictions set out
in Clause 15 will be reduced by the length of the garden leave served
prior to the Termination Date.
19
15.4 The Employee agrees that the restrictions contained in Clauses 15.1 and
15.2 are reasonable and necessary for the protection of the legitimate
interests of the Company and the Group Companies and that, having regard
to those interests, those restrictions do not work harshly on him. It is
nevertheless agreed that if any of those restrictions shall taken
together or separately be held to be void or ineffective for any reason
but would be held to be valid and effective if part of its wording were
deleted, or the period or area of application reduced, that restriction
shall apply with such deletions as may be necessary to make it valid and
effective. The Employee further acknowledges that the restrictions
contained in Clauses 15.1 and 15.2 shall apply in relation to all
Customers and Suppliers notwithstanding that such Customers and Suppliers
may have been introduced to the Company or any Group Company by the
Employee before or during his employment with the Company.
15.5 The restrictions contained in each sub-clause of Clause 15.1 shall be
construed as separate and individual restrictions and shall each be
capable of being severed without prejudice to the other restrictions or
to the remaining provisions.
15.6 If the Company transfers all or any part of its business to a third party
("the transferee") the restrictions contained in this Clause shall with
effect from the Employee becoming an employee of the transferee apply to
the Employee as if references to the Company include the transferee and
references to any Group Company were construed accordingly and as if
references to customers, Clients or Suppliers were to, Clients or
Suppliers of the Company and/or the transferee and their respective Group
Companies.
15.7 The Employee hereby agrees that he will at the request and cost of the
Company enter into a direct agreement or undertaking with any Group
Company whereby he will accept restrictions and provisions corresponding
to the restrictions and provisions contained in Clause 15 (or such of
them as may be appropriate in the circumstances) in relation to such
services and such area and for such period as such company or companies
may reasonably require for the protection of its or their legitimate
interests.
20
15.8 Before accepting any offer of alternative employment the Employee
undertakes that he shall provide a copy of this Agreement to his
prospective new employe r.
15.9 The restrictions set out in this Clause 15 are without prejudice to other
express or implied duties whether fiduciary or otherwise owed by the
Employee to the Company or any Group Company.
16 STATUTORY REQUIREMENTS
16.1 For the purpose of the Employment Protection (Consolidation) Xxx 0000 as
amended, it is hereby further agreed and declared that:-
16.1.1 the Employee's previous employment with PCH Investments Limited (formerly
Xxxxx Xxxxxxxx Holdings Limited) and Xxxxx Xxxxxxxx Limited shall count
as part of his continuous employment with the Company which therefore
began on 28 January 1990;
16.1.2 a contracting out certificate is in force for the purposes of the Social
Security Xxxxxxxx Xxx 0000 in respect of the Employee.
16.2 Pursuant to the Wages Xxx 0000, the Employee authorises the Company to
deduct and to retain from any salary or other remuneration (including
without limitation any payment made to the Employee in lieu of notice)
accrued to him in consideration of his employment by the Company (whether
or not actually paid during the continuance of his employment):-
16.2.1 any pension or other similar contribution owed by the Employee as a
consequence of the Employee's membership of the pension scheme referred
to in Clause 4.8 above; and
16.2.2 any sum due from the Employee to the Company or any Group Company.
21
17 GENERAL
17.1 This Agreement is in substitution for all previous contracts of service
or other arrangements relating to his employment between the Employee and
the Company or any Group Company, which shall be deemed to have been
terminated by mutual consent as from the Commencement Date.
17.2 The expiry or termination of this Agreement shall not operate to affect
such of the provisions of this Agreement as are expressed to remain in
full force and effect notwithstanding such termination.
18 NOTICES
18.1 Any notice to be served in connection with and any notice or other
correspondence under or in connection shall be delivered:-
18.1.1 in the case of the Company, to its registered office for the time being;
and
18.1.2 in the case of the Employee, to his address given or to such other
address as may be notified by him
in writing or transmitted by facsimile or sent by first class pre-paid
mail or delivered by hand in each case to the address as set out above.
18.2 Any such notice or correspondence shall be deemed to have been served as
follows:-
18.2.1 in the case of service by first class mail, on the third business day
after the day on which it was posted;
18.2.2 in the case of delivery or facsimile transmission (subject, in the case
of facsimile transmission, to oral confirmation of receipt of all
transmitted pages) on the day it is delivered or transmitted provided
that if that day is not a business day or, being a business day,
transmission delivery or takes place after 5.00 p.m., then at
22
9.00 a.m. on the first business day following delivery or transmission of
the notice.
18.3 Subject to Clause 18.2, in proving service by post or delivery it shall
be sufficient to prove that the notice or correspondence was properly
addressed and left at or posted to the place to which it was so
addressed.
18.4 In this Clause, "business day" means any day other than Saturday, Sunday
or any other day which is a public holiday in the place where or to which
the notice or correspondence is left or despatched.
19 GOVERNING LAW AND JURISDICTION
19.1 This Agreement shall be governed by and construed in accordance with the
Laws of England.
19.2 The parties to this Agreement submit to the exclusive jurisdiction of the
English Courts as regards any claim, dispute or matter arising out of or
relating to this Agreement.
EXECUTED as a deed and delivered on the date set out at the head of this
Agreement.
23
SCHEDULE
BONUS ARRANGEMENTS
The bonus payable to the Employee in respect of each financial year shall be
determined by reference to the matters set out below:-
1 For each financial year of the Company the Employee shall be paid by
way of bonus up to 50% of the basic salary paid pursuant to Clause
4.1.1 hereof in the event that there has been substantial progress
towards achieving the Company's and the Group's strategic objectives
and, in particular, in the event that the Company has achieved its
performance relative to the budget for the financial year in question.
Such bonus shall be pro rated by reference to the proportion of the
financial year during which the Employee is employed. Such bonus shall
be paid in the event the Board shall unanimously resolve that it
should be paid.
2 For each financial year of the Company, the Employee shall be paid by
way of an additional bonus up to 25% of the basic salary payable
pursuant to Clause 4.1.1 hereof in the event that the Board shall
unanimously resolve that such additional bonus should be paid to the
Appointee as a result of the exceptional performance of the Company
during the financial year in question.
24
SIGNED as a Deed by XXXXX )
XXXXXXXX HOLDINGS LIMITED )
acting by )
and )
Director
Director/Secretary /s/ Xxxxxxx Xxxxx
-----------------------------
SIGNED as a Deed by XXXXXXX )
XXXXX XXXXX XXXX in the ) /s/ Xxxxxxx X.X. Xxxx
presence of:- ) -----------------------------
25
DATED 24 November 1997
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC
XXXXX XXXXXXXX HOLDINGS LIMITED
XXXXXXX XXXX
____________________________
EMPLOYMENT AGREEMENT
____________________________
XXXXXX XXXXXXX & XXXXXX
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: (0000) 000 0000
Fax: (0000) 000 0000
Telex: 8812247 HFWLON
Ref. RNH/JYK/557
THIS AGREEMENT is made 24 November 1997
AMONG
(1) CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC., of 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, XXX ("Cambridge")
(2) XXXXXXX XXXX of 00 Xx. Xxxxx Xxxxxxx, Xxxxxx X00 0XX ("the Executive")
(3) XXXXX XXXXXXXX HOLDINGS LIMITED, a company incorporated in England, whose
registered number is 03114683 ("PCH")
WHEREAS:
(A) Cambridge has acquired at least 95% of the share capital of PCH pursuant
to an offer dated 17 November 1997.
(B) It is a term of such acquisition that the Executive is appointed as an
Executive Vice President of Cambridge.
IT IS AGREED as follows:
1. Appointment as executive vice president
---------------------------------------
1.1 The Executive is hereby employed by Cambridge as an executive vice
president of Cambridge. As such he shall manage PCH and its subsidiary
companies and perform such duties as are reasonably assigned to him by the
Chief Executive Officer of Cambridge from time to time (whether they
relate to the business of Cambridge or to the business of PCH and any of
its subsidiaries). In addition, Executive, together with the other
Executive Vice President of Cambridge, who is also formerly a senior
officer at PCH, shall be responsible for the management of the management
consulting strategic business unit of Cambridge and its subsidiaries. The
Executive shall also serve as a member of the executive committee of
senior officers of Cambridge.
1.2 The Executive accepts such employment and agrees to render the services
described in this agreement and in the agreement dated 16 November 1995
between him and PCH ("the Agreement") and to devote his entire available
business time, effort, skill and attention to promote the best interests
of Cambridge and PCH and it subsidiaries. The Executive also agrees that
the remuneration and other benefits which he enjoys under the Agreement,
as modified by clause 4, shall cover his position as executive vice
president of Cambridge and he shall not be entitled to any additional
consideration for such employment.
1.3 In addition to the rights set out in the Agreement (as amended by this
agreement) the Executive shall be considered eligible to participate in
any other fringe benefits, benefit plans or related compensation
programs or plans such as the discretionary option or bonus plans of
Cambridge to the same extent as executive vice president levels of
employees in Cambridge. In that connection, the Executive shall be
eligible to receive an annual bonus commencing with the twelve month
period ending December 31, 1998 of up to 50% of the salary paid to him by
PCH under the Agreement, to be determined upon the same basis as executive
vice president level employees of Cambridge. All of the Executive's years
of service with PCH shall be deemed to be years of service with Cambridge
or its subsidiaries, as applicable, in determining the Executive's rights
to participate in such benefits, plans or programs.
2. Cessation of Office
-------------------
2.1. If the Executive's employment with PCH pursuant to the Agreement is
terminated for any reason, the Executive shall cease to be an Executive
Vice President of Cambridge contemporaneously with the termination of the
Agreement and shall not be entitled to any compensation as a result in
addition to that to which he may be entitled pursuant to the Agreement or
as a result of it being terminated.
3. Miscellaneous
-------------
3.1 All notices and other communications required or permitted to be given
under this agreement relating to the Executive's employment as an
executive vice president of Cambridge shall be in writing and shall be
deemed to have been duly given and delivered by hand, sent by overnight
courier service or facsimile transmission to the parties at the following
addresses or to such other address of a party if such party may have
designated to the other any prior notice given in accordance with this
agreement:
(a) if to Cambridge to 000 Xxxxxx Xxxxxx, Xxxxxxxxxxxxx, 00000, XXX
attention Chief Financial Officer
with a copy to
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
Xxxx Xxxxxx Xxxxx
Xxxx Xxxxxx
Xxxxxx XX 00000 XXX
Attention: X. Xxxxxx Esq
(b) if to the Executive to:
00 Xx. Xxxxx Xxxxxxx
Xxxxxx
X00 0XX
3.2 This agreement, together with the Agreement as varied by this agreement
and that certain Share and Option Purchase Agreement contemplated by the
share capital offer by Cambridge as described above, sets out the entire
agreement and understanding of the parties concerning the subject matter
of this
2.
agreement and supersedes any prior understanding and agreement relating to
the terms of the Executive's employment by PCH and by Cambridge.
3.3 This agreement may be amended, modified, superseded or canceled or the
terms or covenants of it may be waived only by a written instrument
specifically referring to this agreement and executed by Cambridge and the
Executive, or in the case of a waiver, by the party entitled to the
benefit of such provisions. The failure by a party hereto at any time or
from time to time to require performance of any obligations under this
agreement shall in no manner affect such party's right to enforce any
provisions of this agreement at a subsequent time; and the waiver by a
party to this agreement of any right arising out of any breach shall not
be construed as a waiver of any right arising out of any subsequent
breach.
3.4 If any provision of this agreement (save for clause 4), or the application
thereof to any person or circumstance, should for any reason and to any
extent be invalid or unenforceable, the remainder of this agreement and
the application of such provision to other persons or circumstances shall
not be affected thereby, but rather shall be enforced to the greatest
extent permitted by the law. Moreover, if one or more of the provisions
contained in this agreement shall for any reason be held to be excessively
broad as to scope, activity, subject or otherwise so as to be
unenforceable at law, such provision or provisions shall be construed by
the appropriate Judicial body by limiting or reducing it or them so as to
be enforceable to the maximum extent compatible with the applicable law as
it shall then appear.
3.5 This agreement shall be governed by and construed in accordance with the
laws of England.
4. Variation of the Agreement
--------------------------
4.1 The Agreement shall be varied in the following respects:
(a) Clause 4.1.2.2 shall be amended to say:
"reviewed by the board of Cambridge annually in December for the
calendar year commencing the following January, the first such
review to take place in December 1998".
(b) Clause 4.2 shall be amended by clarifying that the Executive is
entitled to travel Business or such similar Class on all flights
originating from and terminating in Europe and First or such similar
Class oil all other international flights.
(c) Clause 4.3 (which confers an entitlement to a bonus calculated in the
manner set out in the Schedule to the Agreement) shall cease to apply.
(d) Clause 4.4 shall be varied by removing the right of the Executive to
two motor cars and
3.
replacing it with a right to be provided one motorcar which shall be a
used BMW 750i or its equivalent.
(e) Clause 4.5 shall be varied by deleting "each of the cars" in the
second line and replacing it with "the car".
(f) Clause 6 shall be varied by inserting at the end of the first sentence
after "the proper performance of his duties" the following:
"under this Agreement and under the agreement between the
Executive, Cambridge and PCH dated 24 November 1997".
4.2 The Executive acknowledges and agrees that, at the time of amending the
Agreement, there were no amounts due to him from PCH or its subsidiaries,
save for his accrued salary and any outstanding business expense
reimbursements.
4.3 In all other respects the agreement shall continue in full force and
effect.
IN WITNESS whereof the parties have signed this agreement
/s/ Xxxxx X. X'Xxxx
---------------------------------
SIGNED by XXXXX X. X'XXXX
for and on behalf of Cambridge Technology Partners (Massachusetts), Inc.
/s/ Xxxxxxx Xxxx
---------------------------------
SIGNED by XXXXXXX XXXX
/s/ Xxxxxxx Xxxx
---------------------------------
SIGNED by Xxxxxxx Xxxx
for and on behalf of Xxxxx Xxxxxxxx Holdings Limited
4.
