Exhibit 4.14
7
DATED 20 January 2003
(1) ebookers plc
- and -
(2) Xxxxxx Xxxxxx
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COMPROMISE AGREEMENT
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CONTENTS
1. INTERPRETATION............................................................................................1
2. SEVERANCE PAYMENT AND CONTINUING BENEFITS.................................................................2
3. SHARE OPTIONS.............................................................................................3
4. RESIGNATION OF DIRECTOR...................................................................................3
5. REASONABLE ASSISTANCE.....................................................................................4
6. LEGAL EXPENSES............................................................................................4
7. WARRANTIES................................................................................................5
8. TAX INDEMNITY.............................................................................................5
9. CONFIDENTIALITY...........................................................................................5
10. COMPANY PROPERTY..........................................................................................5
11. CLAIMS AGAINST THE COMPANY................................................................................6
12. DIRECTORS AND OFFICERS LIABILITY INSURANCE................................................................9
13. WHOLE AGREEMENT...........................................................................................9
14. THIRD PARTY RIGHTS.......................................................................................10
15. HEADINGS.................................................................................................11
THIS AGREEMENT is made on 20 January 2003
BETWEEN
(1) ebookers plc (No 3818962) whose registered office is at 00 Xxxxxxxxxx
Xxxxxx, Xxxxxx XX0X 0XX ("Company"); and
(2) Xxxxxx Xxxxxx of 8 Altior Court, 00 Xxxxxxxxx Xxxx, Xxxxxxxx X0 0XX
("Director")
BACKGROUND
1. The Director is employed under the terms of the Service Agreement.
2. The Director's employment with the Company will terminate on the
Termination Date.
3. The Company is entering into this agreement for itself and as agent for
all its Associated Companies and is duly authorised in that behalf.
IT IS AGREED
1. INTERPRETATION
In this agreement:
"Additional Tax" means further income tax,
national insurance contributions,
interest and/or penalties thereon
arising in respect of the payments
made and benefits provided under
this agreement, other than the
income tax deducted under clause 2
below.
"Associated Company" means a company in which
the Company or any Holding Company
or Subsidiary Company is directly or
indirectly beneficially interested
in 10 % (ten per cent) or more of
that company's issued ordinary share
capital. "Holding Company" and
"Subsidiary Company" have the
meanings defined by section 736 of
the Companies Xxx 0000 (or any
statutory modification or
re-enactment of that Act).
"Board of Directors" means the board of directors of the
Company from time to time
"Service Agreement " means the undated contract between
the Director and the Company signed
by the Director and Xxxxxx Xxxxxxx
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"PAYE Regulations" means the Income Tax (Employment)
Regulations 1993 (as amended,
extended or replaced from time to
time).
"Termination Date" means 20 January 2003.
"Share Option Agreement" means the Option Agreement between
xxxxxxxx.xxx plc and Xxxxxx Xxxxxx
dated 21 October 1999.
2. OUTSTANDING SALARY/HOLIDAY PAY/BONUS, EXPENSES, SEVERANCE PAYMENT AND
CONTINUING BENEFITS
Subject to the Director's compliance with all obligations imposed by virtue
of this agreement and in full and final settlement of the claims set out in
clause 11.1 and 11.2 below, the Company shall, as compensation for loss of
employment but without admission of liability
2.1 Outstanding salary, holiday pay and bonus
Pay to the Director within 14 days of the date of this
agreement the gross sum of (pound)25,036 which is comprised
of: (pound)8,100 accrued salary; (pound)736 accrued holiday
pay; (pound)16,200 bonus payment in respect of the China
Project. The Company shall deduct from the gross sum of
(pound)25,036 income tax and national insurance contributions
as required by the Inland Revenue or other statutory body as
required by law.
2.2 Expenses
Pay to the Director within 14 days of the date of this
agreement the sum of (pound)1,850 in respect of expenses owing
to the Director.
2.3 Severance Payment
Pay to the Director within 14 days of the date of this
agreement an ex gratia payment of (pound)68,765 ("Severance
Payment"). It is the understanding of the parties to this
agreement that the first (pound)30,000 of the Severance
Payment may be paid free of income tax and national insurance
contributions. The Company shall deduct form the Severance
Payment basic rate income tax and national insurance
contributions on the balance in excess of (pound)30,000 and
will account for the same to the Inland Revenue or other
statutory authority as required by law.
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2.4 Private Medical Insurance
Until 31 May 2003 or until the Director takes up full time
employment with another employer, whichever is the sooner,
continue to provide for the benefit of the Director private
medical insurance with the Norwich Union including cover for
the Director's spouse/family on the same terms and conditions
as applied immediately prior to the Termination Date.
2.5 Bonus
The Remuneration Committee of the Company shall meet in March
2003 to consider payment of a bonus to its executive
directors, including the Director, to a value of up to 5% of
salary in respect of the financial year 2002-2003. Payment of
a bonus to the Director shall be determined at the absolute
discretion of the Remuneration Committee. The Company shall
deduct from any monies paid to the Director any income tax and
national insurance contributions required by the Inland
Revenue or other statutory authority as required by law.
2.6 Any further liability in respect of Additional Tax due on the
Severance Payment and any other benefits pursuant to this
agreement shall be the Directors' alone.
3. SHARE OPTIONS
3.1 The Company confirms that all the remaining share options granted
to the Director on 3 April 1999 pursuant to the Share Option
Agreement have become fully and unconditionally vested in the
Director and may be exercised by him under Clause 6.1.2 of the
Share Option Agreement at any time on or before 2 April 2009,
subject to the rules of the Share Option Agreement.
3.2 The Company hereby confirms that it has waived the requirement
under Clause 6.1.2 for the Director to give "notice in writing"
to the Members of the Group (as defined by the Share Option
Agreement) by which he is employed of his ceasing to be a
director or employee.
3.3 The Company also confirms that in the event of a variation in the
equity share capital of the Company the directors of the Company
will exercise their discretion (pursuant to Clause 4.1 of the
Share Option Agreement) to adjust the number or nominal amount of
Shares comprised in each Option and/or the option price in such a
way as in the opinion of the directors is fair and reasonable to
take account of the effect of such variation on the Option. The
exercise of the discretion shall be subject to clause 4.2 of the
Share Option Agreement. For the avoidance of doubt, variation in
the equity share capital refers, for example, to share split or
consolidation, bonus issues of shares etc. Variation in the
equity share capital does not refer to, for example, issue of
shares on acquisitions, exercise of options etc.
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3.4 For the avoidance of doubt the Company also confirms that it
will use its best endeavours to provide the Director with
prompt assistance in, itself or through outsourced agents,
executing the share sale certificate(s) and in having the
shares listed with the listing authority.
4. RESIGNATION OF DIRECTOR
4.1 The Director shall with effect from 20 January 2003 resign as
a director of the Company and any of its Associated Companies
by signing the letter of resignation attached to this
agreement at Schedule 2, which shall be deemed to have been
delivered to the Company and the relevant Associated Companies
as at the date of this agreement.
4.2 The Director shall immediately do all such acts and things as
the Company may require to effect the resignation from other
offices with the Company or any of its Associated Companies or
which the Director held by reason of employment by the Company
including (but without prejudice to the generality of the
above) any trusteeships.
4.3 Having resigned as a director of the Company and from such
other offices which the Director holds with any Associated
Company the Director will not represent or suggest in any way
any continued authority in respect of or in connection to the
Company or any Associated Company
5. REASONABLE ASSISTANCE
Up to 31 May 2003 the Director agrees to provide reasonable assistance to
the Company in connection with queries arising in respect of his former
duties as Managing Director, at reasonable notice, given by a Board director
of the Company. It is agreed by the Company that if the Director is out of
the country when assistance is required he will not be expected to return to
the UK in order to provide the assistance, but shall be required to provide
assistance to an equivalent standard and timing by way of telephone or other
means of communication. The Company will also reimburse the Director for any
reasonable out of pocket expenses incurred by him in providing the
assistance, subject to those expenses being agreed in advance by a director
of the Company.
6. LEGAL EXPENSES
The Company shall on the production of an appropriate copy VAT invoice
addressed to the Director for payment by the Company, pay to the Director's
relevant independent adviser as referred to in clause 11.4 below (within 30
days of the receipt of the copy VAT invoice) the Director's legal expenses
relating exclusively to the negotiation and preparation of this agreement,
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of (pound)2,736 plus VAT. Payment will be made direct to the Director's
legal advisers.
7. WARRANTIES
7.1 The Director warrants to the Company that as of the date of
this agreement the Director has not commenced employment and
has not agreed to accept nor received any offer of employment
from any person firm or company, the expression "employment"
for the purpose of this clause to include any contract of
service, any contract for services, any partnership or agency
agreement.
7.2 The Director warrants to the Company that as far as the
Director is aware there is not in existence at the date of
this agreement any material fact concerning the performance of
the Service Agreement or otherwise relating to the business of
the Company or any breach of any material term (express or
implied) of the Service Agreement which has not been disclosed
to the Board.
8. TAX INDEMNITY
The Director undertakes that if the Company or any of its Associated
Companies is called upon to account to the Inland Revenue to pay any
Additional Tax the Director will, at the written request of such company,
immediately pay to such company an amount equal to the Additional Tax (on an
after-tax basis), provided always the company has notified the Director as
soon as reasonably practicable after it becomes aware of any claim for
Additional Tax being raised by the Inland Revenue.
9. CONFIDENTIALITY
9.1 The Director undertakes that the Director will not, whether
directly or indirectly, make, publish or otherwise communicate
any disparaging or derogatory statements, whether in writing
or otherwise, concerning the Company or any of its Associated
Companies or any of its or their officers or directors.
9.2 The Director agrees to keep the terms on which the Director's employment is
terminated strictly confidential and agrees not to disclose, communicate or
otherwise make public the same to anyone (save to the Director's immediate
family, professional advisers and the relevant tax authorities and otherwise as
may be required to be disclosed by law).
10. COMPANY PROPERTY
The Director undertakes that all property, equipment, records,
correspondence, documents, files and other information (whether originals,
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copies or extracts or in any electronic format) belonging to the Company or
any of its Associated Companies (other than as specified in this agreement)
has been returned by 20 January 2003 and that the Director has not retained
any copies.
10.1 The Director will however, be entitled to retain his Company
Laptop Computer and mobile phone and use of his current mobile
phone number for consideration of (pound)1,000. This sum has
already been deducted from the Severance Payment. In relation
to the mobile phone, there shall be a period of approximately
(but not limited to) one month from the Termination Date
whilst arrangements are made for the mobile phone to be
transferred to the Director ("Handover Period"). During this
Handover Period, the Director shall reimburse the Company for
all costs associated with the mobile phone to include, but not
be limited to, insurance, line rental and phone calls within
30 days of receiving notice from the Company of the amounts
due. The Director shall complete all paperwork required for
transfer of the mobile phone to him, and if he does not do so
within 14 days of this being forwarded to him the Company
shall place a bar on use of the phone. The Director agrees to
allow a representative of the Company to access the laptop
computer during the week commencing 20 January 2003 to remove
all records, correspondence, documents, files and other
information belonging to the Company or any of its Associated
companies. The Director undertakes he shall not retain any
copies of any such records, correspondence, documents, files
and other information belonging the to the Company or any of
its Associated companies contained on the laptop computer.
11. CLAIMS AGAINST THE COMPANY
11.1 The Director believes that but for this agreement he could
bring proceedings against the Company, its Associated
Companies, and its/their respective shareholders, officers or
directors for the contractual and statutory claims listed
below:
11.1.1 wrongful dismissal; and
11.1.2 breach of contract; and
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11.1.3 unlawful deduction of wages under the Employment
Rights Act 1996 (as amended) ("ERA"); and
11.1.4 unfair dismissal under the ERA; and
11.1.5 unlawful discrimination on grounds of sex or marital
status (including for the avoidance of doubt
victimisation) under the Sex Discrimination Act 1975
(as amended) ("SDA"); and
11.1.6 unlawful discrimination on grounds of race, colour,
ethnic or national origins, nationality (including for
the avoidance of doubt victimisation) under the Race
Relations Act 1976 (as amended) ("RRA"); and
11.1.7 unlawful discrimination on grounds of disability
(including for the avoidance of doubt victimisation)
under the Disability Discrimination Act 1995 (as
amended) ("DDA"); and
11.1.8 under the Equal Pay Act 1970 (as amended) ("EPA"); and
11.1.9 under the Trade Union and Labour Relations
(Consolidation) Xxx 0000 ("TULR(C)A"); and
11.1.10 under the National Minimum Wage Xxx 0000 ("NMWA"); and
11.1.11 under the Transfer of Undertaking (Protection of
Employment) Regulations 1981 ("TUPE"); and
11.1.12 under the Working Time Regulations 1998 ("WTR"); and
11.1.13 under the Transnational Information and Consultation
of Director Regulations 1999 ("XXXXX"); and
11.1.14 under the Part-Time Workers (Prevention of Less
Favourable Treatment) Regulations 2000 ("PTWR"); and
11.1.15 under the Fixed-Term Directors Regulations
(Prevention of Less Favourable Treatment)
Regulations 2002 ("FTER"); and
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11.1.16 under the Treaty of Amsterdam.
11.2 The terms of this agreement are reached without admission of
liability and are in full and final settlement of all claims
(if any) whether contractual, statutory or otherwise and
whether under United Kingdom and/or European Union law
(including but not limited o the Director's claims under
clause 11.1 above) which the Director has or may have against
the Company or any of its Associated Companies or their
respective shareholders, officers or directors arising out of
or in connection with the Director's employment or its
termination.
11.3 The Director represents and warrants that the claims listed at
clause 11.1 include all of the complaints, claims and concerns
which with the benefit of legal advice the Director believes
that he has against the Company or any of its Associated
Companies or their respective shareholders, officers or
directors arising out of the Director's employment under the
Directors Service Agreement or any act or omission relating to
the Director's employment or relating to, arising out of or
connected to the manner of its termination.
11.4 The Director represents and warrants that:
11.4.1 the Director has received independent legal advice
from a relevant independent adviser as to the terms
and effect of this agreement and in particular its
effect on the Director's ability to pursue statutory
rights before an employment tribunal. The name of the
relevant independent adviser who has so advised the
Director is Xxxxxx Xxxxxxxx of Xxxxxxxxx Englefield of
00 Xxx Xxxxxx, Xxxxxx XX0X HE and the Director further
agrees that he will procure that the relevant
independent adviser completes and returns to the
Company the endorsement annexed to this agreement at
schedule 1; and
11.4.2 the Director is advised by the relevant independent
adviser that there is in force and was, at the time
the Director received the advice referred to above a
contract of insurance, or an indemnity provided for
members of a profession or professional body, covering
the risk of a claim by the Director in respect of loss
arising in consequence of that advice; and
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11.4.3 the Director has not issued proceedings before the
employment tribunals, High Court or County Court in
respect of any claim in connection with the Service
Agreement or its termination and the Director
undertakes that no proceedings have been or will be
issued in connection with the same and if such
proceedings are issued the Director accepts and agrees
that all monies paid to the Director under this
agreement will be repayable to the Company, as a debt
and upon demand; and
11.4.4 as at the date of this agreement, the Director is not
aware of any facts or matters which might give rise to
a claim for personal injury against the Company or any
of its Associated Companies.
11.5 The Company and the Director agree and acknowledge that the
conditions regulating compromise agreements and to compromise
contracts contained in the ERA, the SDA, the RRA, the DDA, the
NMWA and in any other act or statutory instrument referred to
in clause 11.1 above are intended to be and have been
satisfied.
11.6 The Director shall indemnify the Company in full and keep the
Company fully indemnified for and against all and any claims,
demands, judgements, orders, liabilities, damages, expenses or
costs (including without limitation all reasonable legal and
professional fees and disbursements together with VAT thereon)
incurred by the Company arising out of or in connection with
any breach by the Director of the warranties in this clause
11.
12. DIRECTORS AND OFFICERS LIABILITY INSURANCE
Subject to a Directors' and Officers' Liability insurance policy (covering
claims against directors of the Company and any Associated company) being in
place for the Company, the Company shall maintain in force on a continuing
basis Directors' and Officers' Liability insurance providing the Director
with not less than the level of cover currently in force in order to protect
the director from claims in respect of the period during which he was a
director of the Company and any Associated Company. This policy shall be
maintained in force for a period of not less than 6 years from the
termination date save in respect of any alterations to the policy as may be
required by the underwriter of the policy.
13. WHOLE AGREEMENT
This agreement sets out the entire agreement between the parties and
supersedes all prior discussions between them or their advisors and all
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statements, representations, terms and conditions, warranties, guarantees,
proposals, communications, and understandings whenever given and whether
orally or in writing.
14. THIRD PARTY RIGHTS
Nothing in this agreement confers on any third party any benefits under the
provisions of the Contracts (Rights of Third Parties) Xxx 0000.
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15. HEADINGS
The headings to clauses in this agreement are for convenience only and have
no legal effect.
SIGNED /S/XXXXXX XXXXXXX
.................................................................................
For and on behalf of ebookers plc
SIGNED /S/XXXXXX XXXXXX
.................................
Xx Xxxxxx Xxxxxx
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SCHEDULE 1
INDEPENDENT ADVISER'S ENDORSEMENT ADDRESSED TO THE BOARD OF DIRECTORS OF THE
COMPANY
I, Xxxxxx Xxxxxxxx of Xxxxxxxxx Englefield of 00 Xxx Xxxxxx, Xxxxxx XX0X 0XX
confirm that I have given independent legal advice to Xxxxxx Xxxxxx of 8 Altior
Court, 00 Xxxxxxxxx Xxxx, Xxxxxxxx, X0 0XX as to the terms and effect of the
above Agreement and in particular its effect on Xx Xxxxxx'x ability to pursue
his rights before an employment tribunal.
I confirm that I am a "relevant independent adviser" (as such term is defined in
section 203 of the Employment Rights Act 1996) and that there is and was at the
time I gave the advice referred to above in force a contract of insurance, or an
indemnity provided for members of a profession or professional body, covering
the risk of a claim by Xxxxxx Xxxxxx in respect of any loss arising in
consequence of that advice.
SIGNED /S/XXXXXX XXXXXXXX
.................................................................................
Xxxxxx Xxxxxxxx
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Schedule 2
Letter of Resignation
Private and confidential
The Directors
Ebookers plc
00 Xxxxxxxxxx Xxxxxx
Xxxxxx
XX0 0XX
20 January 2003
Dear Sirs
Please accept this letter as formal notice of my resignation as a Director of
the Company and each of its direct and indirect subsidiaries of which I am a
Director. My resignation is to be effective at close of business on 20 January
2003.
Please arrange for particulars of my resignation to be filed with the Registrar
of Companies and given to the London Stock Exchange.
Yours faithfully
