Exhibit 10.4 Service Agreement by and between Xx0xxx.xxx
Limited and Xxxxx Xxxxxx
BETWEEN
(1) Ci4net Limited (Company number 3714112) whose
registered office is at Xxxxxxxxx Xxxxx, 00 Xxxxxxxx
Xxxxx, Xxxxxx XX0X 0XX (the "Company")
and
(2) Xxxxx Xxxxxx of 0 Xxxxxxx Xxxx, Xxxxxx, XX00-0XX (xxx
"Executive")
WHEREBY IT IS AGREED as follows:
Meaning of words used
1.1 In this Agreement and the Schedule the following
expressions have the following meanings:-
"Board" the Board of Directors of the Company
from time to time
"Commencement Date" 6th December 1999
"Financial Period" an accounting reference period of the
Company determined in accordance with
the provisions of Sections 224 and 226
of the Companies Xxx 0000.
"Group" the Company and all those Group
Companies wherever registered or
incorporated for which the Executive
performs duties and/or functions
pursuant to Clause 4;
"Group Company" any holding company for the time being
of the Company or any subsidiary for the
time being of the Company or of any such
holding company (for which purpose
"holding company" and "subsidiary" have
the meanings ascribed to them by Section
736 of the Companies Xxx 0000 as amended
by the Companies Act 1989);
"Head Office" Xxxxxxxxx Xxxxx, 00 Xxxxxxxx Xxxxx,
Xxxxxx, XX0X 0XX
"the 1996 Act" the Trade Union Reform and Employment
Rights Xxx 0000;
"The London Stock
Exchange" London Stock Exchange Limited;
"PAYE deductions" deductions made to comply with
regulations made under Section 203
Income and Corporation Taxes Act 1988
and with any obligations to deduct
national insurance contributions;
"recognised investment
exchange" has the meaning ascribed to it in
Section 207 of the Financial Services
Xxx 0000.
1.2 References herein to "Clauses", "sub-clauses" and
"the Schedule" are to clauses and sub-clauses of and the Schedule
to this Agreement unless otherwise specified.
1.3 Unless otherwise required words denoting the
singular include the plural and vice versa.
1.4 References in this Agreement to statutory provisions
include all modifications and re-enactments of them and all
subordinate legislation made under them.
1.5 Clause headings are included in this Agreement for
convenience only and do not affect its construction.
Previous agreements
2.1 This Agreement contains the entire and only
agreement and
will govern the relationship between the Company and the
Executive from the Commencement Date in substitution for all
previous agreements and arrangements whether written, oral
or implied between the Company or any Group Company and the
Executive relating to the services of the Executive all of
which will be deemed to have terminated by consent with
effect from the Commencement Date. The Executive and the
Company acknowledge that in entering into this Agreement
neither has relied on any representation or undertaking by
the other whether oral or in writing except as expressly
incorporated in this Agreement.
2.2 The Executive hereby acknowledges that he has no
outstanding claim of any kind against any Group Company.
2.3 The Executive warrants and represents to the Company
that he will not be in breach of any existing or any former
terms of employment applicable to him whether express or
implied or
of any other obligation binding on him by reason of him
entering into this Agreement or performing all or any of his
duties and obligations under it.
Appointment, term and notice
3.1 The Company will employ the Executive and the
Executive will serve the Company as a Business Development Director
and be treated in a similar manner in regards to authority,
benefits and share options as other directors at the same
level in the Company or within a Group Company.
3.2 Subject as hereinafter provided the said appointment
will commence on the Commencement Date and will continue
thereafter unless and until the employment is terminated by
either party giving to the other not less than 12 calendar
months written notice PROVIDED that the first 3 months of
the employment shall be considered as a mutual trial period
at the end of which either party may terminate this
agreement in writing.
3.3 The Executive agrees that at its absolute discretion
the Company may terminate the Executive's employment under
this Agreement with immediate effect by paying to the
Executive in full and final settlement of all claims which
he has or may have against the Company or any director,
employee or agent of the Company or any Group Company under
or arising out of his employment with the Company or any
such Group Company, on the termination of his employment or
otherwise salary (less PAYE deductions) in lieu of the
balance of the notice period or remainder of the notice
period if at the Company's request the Executive has worked
during part of the notice period.
3.4 Notwithstanding the provisions of Clause 3.2, the
Executive's employment under this Agreement will
automatically terminate on his 60th birthday.
3.5 The Executive's continuous employment with the
Company for the purpose of the 1996 Act commenced on the
Commencement Date.
Duties
4.1 The Executive will carry out such duties and
functions, exercise such powers and comply with such
instructions in
connection with the business of the Company and the Group
Companies as the Board reasonably determines from time to
time. Except when prevented by illness, accident or holiday
as provided below the Executive will devote the whole of his
time (save for time spent on the affairs or such other
projects as maybe agreed between the parties, consent to
such projects not to be unreasonably withheld by the
Company), attention and skill to the affairs of the Company
and where appropriate the Group Companies and use his best
endeavours to promote their interests provided that without
prejudice to any other rights of the Company, the Board may
at any time require the Executive to cease performing and
exercising all or any of such duties, functions or powers.
4.2 The Executive will if and so long as he is so
Required by the Company carry out duties which fall within
his
experience in the media and marketing industry as director,
officer or employee of any other Group Company. The duties
attendant on any such appointment will be carried out by the
Executive as if they were duties to be performed by him on
behalf of the Company under this Agreement.
4.3 The Executive will at all times promptly give to the
Board (in writing if requested) all information, explanations and
assistance that the Board may require in connection with the
business or affairs of the Company and the Group and his
employment under this Agreement.
4.4 The Company will provide the Executive with an assistant
to help him perform his duties to the Company immediately. The
Executive will be involved in the recruitment of any such
assistant. Provided the Company has used reasonable
endeavours so to do, no failure by the Company to provide an
assistant will amount to a breach by the Company of its
obligations herein.
Place of work
5.1 The Executive will perform his duties at the Head Office
of the Company or such other place of business of the Company
or of any Group Company as the Company requires or as may be
agreed with the Executive (from time to time) whether inside
or outside the United Kingdom but the Company will not
require him without his prior consent to go to or reside
anywhere outside the United Kingdom except for occasional
visits in the ordinary course of his duties comprising in
aggregate no more than 90 days in any 6 month period.
5.2 If the Company relocates its head office/changes the
Executive's place of work so that the Executive has to
relocate his residence, the Company will reimburse him for
his reasonable removal and other incidental expenses in
accordance therewith within a month of the Executive
incurring such expenditure.
5.3 If the Company relocates its Head Office from its present
position to more than 25 miles from the Executive present
home, the Executive will have the option to work from home
or any other location to be agreed with the Company for a
period of not less than 2 days per week. The cost of
providing facilities at the Executives home or other
location shall be met by the Company. If the Executive
incurs additional travelling expenses due to the Head Office
move, these additional expenses will also be met by the
Company.
Hours of Work
6. The Company's normal office hours are from 9.00 am to
5.30pm Monday to Friday but the Executive may be required to work
outside these hours without additional remuneration in order
to meet the requirements of the business if so required for
the proper performance of his duties. If the Executive works
beyond 9.00p.m. on any day, he will not be required to
attend the office punctually at 9.00am the following day.
Remuneration
7.1 The Company will pay the Executive a salary at the rate
of GBP80,000 per annum with effect from the Commencement Date
which will accrue from day to day and be payable in arrears
by equal monthly instalments on the last day of each month.
7.2 The Executive's salary will be subject to upward review
only by the Board which will be effective on and from 1st January
in each year during the Executive's employment under this
Agreement commencing 1st January 2001 provided that the
increase (if any) of such salary together with such
additional emoluments will be a matter to be decided at the
Board's absolute discretion
7.3 The salary referred to in Clause 7.1 will be inclusive of
any director's fees to which the Executive may be entitled
as a director of the Company or of any Group Company.
7.4 The Executive will be entitled to participate in any
bonus scheme for executive directors implemented by the Board
from time to time.
7.5 The Executive will receive 300,000 options @ $3 in the
Company's option scheme on joining the company. In addition
a separate incentive and bonus share option scheme will be
entered into between the Executive and the Company and will
be annexed to this Agreement with 60 days of signing this
agreement.
Expenses
8. The Executive shall be entitled to be reimbursed:
8.1 all out of pocket expenses (including hotel, travelling and
entertaining expenses) reasonably incurred by him in the
proper performance of his duties, subject to the production
of such receipts or other evidence as the Company may
reasonably require.
8.2 all expenses (including, without limitation, all legal and
other costs of sale and purchase, the cost of any temporary
accommodation, removal charges and an allowance for the
provision or replacement of fittings such as carpets and
curtains) reasonably incurred by or on behalf of the
Executive in moving from his present residential address to
another if required to do so by the Company.
8.3 the cost of subscription to all professional bodies towhich
the Executive is obliged to belong in order to maintain his
professional qualification.
Motor Car
9. The Company shall provide the Executive with a car allowance
of GBP750.00 per calendar month and reimburse the Executive
for the use of his personal car at the standard AA or RAC
rate of mileage.
Holidays
10.1 In addition to normal public holidays the Executive will be
entitled to 20 working days' paid holiday in each calendar
year, such holiday to be taken at such time or times as may
be approved by the Board.
10.2 Any holiday entitlement which is not taken by the end of the
calendar year to which it relates will be lost and may not
be carried forward.
10.3 The Executive's entitlement to paid holiday in the calendar
year in which his employment terminates will be 2 days for
each completed calendar month in that year provided that no
such entitlement to paid holiday will arise if the Executive
terminates his employment without the Company's consent
before the expiry of notice given by him pursuant to Clause
3.2 or without giving notice or before the expiry of the
fixed term referred to in Clause 3.2 or if the Company
terminates the Executive's employment pursuant to Clause
18.1.
10.4 Where the Executive has taken more or less than his holiday
entitlement in the year his employment terminates, a
proportionate adjustment will be made by way of addition to
or deduction from (as appropriate) his final gross pay
calculated on a pro-rata basis.
Conflict of interests
11.1 The Executive will disclose promptly to the Board in writing
his interests of more than 5% in any business other than
that of the Company and the Group and will notify the Board
immediately of any change in his external interests. Except
with the written consent of the Board the Executive will not
during his employment under this Agreement be directly or
indirectly engaged, concerned or interested whether as
principal, servant or agent (on his own behalf or on behalf
of or in association with any other person) of more than 5%
in any other trade, business or occupation other than the
business of the Company or any Group Company provided that
the Executive will not be precluded from being interested
for investment purposes only as a member, debenture holder
or beneficial owner of any stock, shares or debentures
which are listed or dealt in on a recognised investment
exchange and which do not represent more than five per cent.
of the total share or loan capital from time to time in
issue in such company.
11.2 The Executive will not during his employment introduce to
any other person, firm, company or organisation business of
any kind with which the Company or any other Group Company
for which he has performed services under this Agreement is
able to deal and he will not have any financial interest in,
or derive any financial or other benefit from, contracts or
transactions entered into by the Company or any other Group
Company for which he has performed services under this
Agreement with any third party without first disclosing such
interest or benefit to the Board and obtaining its written
approval.
Pension and Other Benefits
12.1 The Executive is eligible for membership of the Permanent
Health Scheme at its most senior level subject to the
provisions governing such Scheme. A copy of those
provisions will be supplied by the Company on request.
12.2 The Company shall make contributions to the Executive's
Personal Pension Scheme at the rate of 15 per cent of the
Executive's annual remuneration for the time being. The
Executive's pension contribution will be subject to upward
review only by the Board which will be effective on and from
1st January in each year during the Executive's employment
under this Agreement commencing 1st January 2001
12.3 During the Term the Company shall provide the Executive, his
spouse and children under the age of 18 years or in full
time education, with membership of a private medical
insurance scheme, subject to the Company being able to
obtain such membership at normal rates and in accordance
with the information describing the Company's medical
insurance arrangements which has already been supplied to
the Executive.
12.4 Provided the same is available at normal rates, The Company
will procure for the Executive life assurance cover with a
reputable insurer, which, in the event of the Executive's
death during the Employment, will realise for the
Executive's chosen dependants a lump sum equal to four times
the Executive's basic annual remuneration for the time being
payable under this Agreement.
12.5 During the Executive's employment under the terms of this
Agreement the Executive shall be invited to apply for
options to be granted to him under the terms of any option
schemes in place from time to time as the Board determines
from time to time.
Restrictive covenants
13.1 In this Clause 13 the following expressions have the
following meanings:
"Critical Person" any person who was an employee,
agent, director, consultant or
independent contractor employed,
appointed or engaged by the Company or
any Relevant Group Company at any time
within the Relevant Period who by reason
of such employment, appointment or
engagement and in particular his/her
seniority and expertise or knowledge of
trade secrets or confidential
information of the Company or any Group
Company or knowledge of or influence
over the clients, customers or suppliers
of the Company or any Group Company is
likely to be able to assist or benefit a
business in or proposing to be in
competition with the Company or any
Relevant Group Company;
"Relevant Customer" any person, firm company or
organisation who or which at any time
during the Relevant Period is or was:-
(i) negotiating with the Company or a
Relevant Group Company for the sale
or supply of Relevant Products or
Services; or
(ii) a client or customer of the
Company
or any Relevant Group Company for
the sale or supply of Relevant
Products or Services.
and in each case with whom or which the
Executive was directly concerned or
connected or of whom or which the
Executive had personal knowledge during
the Relevant Period in the course of his
employment hereunder;
"Relevant Group Company" any Group Company (other than the
Company) for which the Executive has
performed services under this Agreement
or for which he has had
operational/management responsibility at
any time during the Relevant Period;
"Relevant Period" the period of 12 months immediately
before the Termination Date;
"Relevant Products" products or services which are of
the same kind as or of a Services"
materially similar kind to or
competitive with any products or
services sold or supplied by the Company
or any Relevant Group Company within the
Relevant Period and with which sale or
supply the Executive was directly
concerned or connected or of which he
had personal knowledge during the
Relevant Period in the course of his
employment hereunder;
"Termination Date" the date on which the
Executive's employment under this
Agreement terminates and references to
"from the Termination Date" mean from
and including the date of termination.
"Restricted Territory" United Kingdom
13.2 The Executive will not without the prior written consent
of the Company directly or indirectly and whether alone or
in conjunction with or on behalf of any other person and
whether as a principal, shareholder, director, employee,
agent, consultant, partner or otherwise:-
13.2.1 within the Restricted Territory for a period of
twelve months from the Termination Date be
engaged, concerned or interested in, or provide
technical, commercial or professional advice to,
any other business which supplies Relevant
Products or Services in competition with the
Company or any Relevant Group Company provided
that this restriction does not apply to prevent
the Executive from holding shares or other
securities in any company which is quoted, listed
or otherwise dealt in on a recognised investment
exchange or other securities market and which
confer not more than 1% of the votes which could
be cast at a general meeting of such company; or
13.2.2 within the Restricted Territory for a period of
twelve months from the Termination Date be engaged,
concerned or interested in any business which at
any time during the Relevant Period has supplied
Relevant Products or Services to the Company or any
Relevant Group Company or is or was at any time
during the Relevant Period a Relevant Customer of
the Company or any Relevant Group Company if such
engagement, concern or interest causes or would
cause the supplier to cease or materially reduce
its supplies to the Company (or any Relevant Group
Company as the case may be) or the Relevant
Customer to cease or materially to reduce its
orders or contracts with the Company or any
Relevant Group Company; or
13.2.3 for a period of twelve months from the
Termination dte so as to compete with the Company or any
Relevant Group Company canvass, solicit or approach
or cause to be canvassed, solicited or approached
any Relevant Customer for the sale or supply of
Relevant Products or Services or endeavour to do
so; or
13.2.4 for a period of twelve months from the
Termination
Date so as to compete with the Company or any
Relevant Group Company deal or contract with any
Relevant Customer in relation to the sale or supply
of any Relevant Products or Services, or endeavour
to do so; or
13.2.5 for a period of twelve months from the
Termination
Date solicit, induce or entice away from the
Company or any Relevant Group Company or, in
connection with any business in or proposing to be
in competition with the Company or any Relevant
Group Company, employ, engage or appoint or in any
way cause to be employed, engaged or appointed a
Critical Person whether or not such person would
commit any breach of his or her contract of
employment or engagement by leaving the service of
the Company or any Relevant Group Company;
13.2.6 use in connection with any business any name
which includes the name of any Group Company or any
colourable imitation of it.
13.3 Whilst the restrictions in this Clause 13 (on which the
Executive has had an opportunity to take independent
advice as the Executive hereby acknowledges) are regarded
by the parties as fair and reasonable, it is hereby
declared that each of the restrictions in this Clause 13
is intended to be separate and severable. If any
restriction is held to be unreasonably wide but would be
valid if part of the wording (including in particular but
without limitation the defined expressions referred to in
Clause 13.1) were deleted, such restriction will apply
with so much of the wording deleted as may be necessary to
make it valid.
13.4 If the Executive breaches any of the provisions in this
Clause 13 the Company will be entitled by written notice
to the Executive to extend the period during which the
provisions of Clause 13 which have been breached apply by
an equivalent period to that during which the breach or
breaches have continued, such additional period to
commence on the date on which the said period would have
otherwise expired. The Executive hereby agrees that if
the Company so extends the period of any such restriction,
this will not prejudice the right of the Company to apply
to the Courts for injunctive relief in order to compel the
Executive to comply with the provisions of this Clause 13
and/or damages, as the case may be.
13.5 For the purposes of Clauses 13 and 14 the Company has
entered into this Agreement as agent for and trustee of
all Relevant Group Companies.
13.6 If the Executive applies for or is offered a new
employment, appointment or engagement, before entering
into any related contract the Executive will bring the
terms of this Clause 13 and Clauses 3, 4, 14, 15, 16 and
18.2 to the attention of a third party proposing directly
or indirectly to employ, appoint or engage him.
Confidentiality
14.1 The Executive acknowledges that in the ordinary course of
his employment he will be exposed to information about the
Company's business and the business of other Group
Companies and that of the Company's and the Group
Companies' suppliers and customers which amounts to a
trade secret, is confidential or is commercially sensitive
and which may not be readily available to others engaged
in a similar business to that of the Company or any of the
Group Companies or to the general public and which if
disclosed will be liable to cause significant harm to the
Company or such Group Companies. The Executive has
therefore agreed to accept the restrictions in this Clause
14.
14.2 Without prejudice to Clause 14.3 or 14.4 and subject to
Clause 14.3 the Executive will not during the period of
his employment with the Company:-
14.1.1 sell or seek to sell to anyone information
acquired by him in the course of his employment with the
Company;
14.1.2 obtain or seek to obtain any financial
advantage (direct or indirect) from disclosure of such
information.
14.3 The Executive will not either during his employment or
after its termination without limit in time for his own
purposes or for any purposes other than those of the
Company or any Group Company (for any reason and in any
manner) use or divulge or communicate to any person, firm,
company or organisation except to those officials of any
Group Company whose province it is to know the same any
secret or confidential information or information
constituting a trade secret acquired or discovered by him
in the course of his employment with the Company relating
to the private affairs or business of the Company or any
Group Company or its/their suppliers, customers,
management or shareholders.
14.4 The restrictions contained in this Clause do not apply
to:-
(i) any disclosure authorised by the Board or required
in the ordinary and proper course of the
Executive's employment or as required by the order
of a court of competent jurisdiction or an
appropriate regulatory authority or otherwise
required by law; or
(ii)any information which the Executive can demonstrate
was known to the Executive prior to the
commencement of the Executive's employment by the
Company or by a Group Company or is in the public
domain otherwise than as a result of a breach by
him of this Clause; or
(iii) any information disclosed to the Executive by a
third party who is not bound by any duty of
confidence to the Company or any Group Company.
14.5 The provisions of this Clause 14 are without prejudice to
the duties and obligations of the Executive to be implied
into this Agreement at common law.
Patents
15.1 The Executive must disclose immediately to the Company any
discovery or invention or secret process or improvement in
procedure made or discovered by the Executive during his
employment 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 or
in connection with any such company ("Inventions") which
Inventions will belong to and be the absolute property of
the Company or such other person, firm, company or
organisation as the Company may require.
15.2 If requested by the Board (whether during or after the
termination of his employment) the Executive will at the
expense of the Company apply or join in applying for
letters patent or other similar protection in the United
Kingdom or any other part of the world for all Inventions
and will do everything necessary (including executing
documents) for vesting letters patent or other similar
protection when obtained and all right and title to and
interest in all Inventions in the Company absolutely and
as sole beneficial owner or in such other person, firm,
company or organisation as the Company may require.
15.3 The Executive will (both during and after the termination
of his employment) at the Company's expense anywhere in
the world and at any time promptly do everything
(including executing documents) that may be required by
the Board to defend or protect for the benefit of the
Company all Inventions and the right and title of the
Company to them.
15.4 The Executive hereby irrevocably authorises the Company to
appoint a person to execute any documents and to do
everything necessary to effect his obligations under this
Clause 15 on his behalf.
15.5 The provisions of Clause 15.1 to 15.3 (inclusive) are
without prejudice to the provisions of the Patents Xxx
0000.
Copyright
16.1 The entire copyright and all similar rights (including
future copyright, the right to register trade marks or
service marks and the right to register designs and design
rights) throughout the world in works of any description
produced by the Executive in the course of or in
connection with his employment ("Works") will vest in and
belong to the Company absolutely throughout the world for
the full periods of protection available in law including
all renewals and extensions.
16.2 The Executive will (both during and after the termination
of his employment) at the Company's request and expense
anywhere in the world and at any time promptly do
everything (including executing documents) that may be
required by the Board to assure, defend or protect the
rights of the Company in all Works.
16.3 The Executive hereby irrevocably authorises the Company to
appoint a person to execute any documents and to do
everything necessary to effect the obligations of the
Executive under this Clause 16 on the Executive's behalf.
16.4 For the purposes of Clause 15 and Clause 16, the Executive
hereby irrevocably and unconditionally waives in favour of
the Company the moral rights conferred on him by Chapter
IV Part 1 of the Copyright Designs and Patents Xxx 0000 in
respect of any Inventions or Works in which the copyright
is vested in the Company under Clause 15, this Clause 16
or otherwise.
Incapacity
17.1 If the Executive is absent from his duties as a result of
illness or injury he will notify another member of the
Board as soon as possible and complete any self-
certification forms which are required by the Company.
If the incapacity continues for a period of seven days or
more he will produce to the Company a medical certificate
to cover the duration of such absence.
17.2 Subject to the rest of Clause 17 and to 18.1.7 and subject
to the receipt of the appropriate certificates in
accordance with Clause 18, if the Executive is absent from
his duties as a result of illness or injury he will be
entitled to payment of his salary at the full rate in
respect of such illness or injury for a period (in total)
of no more than three months in any period of 12 months
(whether the absence is intermittent or continuous).
Thereafter, for a further period of three months in any
period of 12 months (whether the absence is intermittent
or continuous) the Executive shall receive half of his
salary otherwise payable to him during such further
period(s) of absence and thereafter the Executive will not
be entitled to any further payment from the Company until
the resumption of his duties
17.3 If the Executive is absent from work because of any injury
or condition (physical or mental and whether or not
sustained in the course of his duties) caused wholly or
partly by any act or omission of any person, firm, company
or organisation (other than the Company or any Group
Company) from whom the Executive may be or become entitled
to recover damages or compensation, any sum paid by the
Company to the Executive in respect of the said absence
will be an interest free loan (subject to any limit
imposed under the Companies Xxx 0000 or other relevant
legislation) to the Executive repayable immediately by the
Executive to the Company on recovery by him of any such
damages or compensation.
17.4 If the Executive has been absent from work because of any
injury or condition caused wholly or partly by the Company
or any Group Company or any person for whom the Company or
any Group Company is vicariously liable and for which the
Executive may be or become entitled to recover damages or
compensation, any such damages or compensation payable
will be reduced by the amount of any sick pay (statutory
or otherwise) paid to him and by the pension received or
receivable by him in the period in respect of which such
damages or compensation are calculated.
17.5 The remuneration paid under Clause 17.2 will include any
Statutory Sick Pay payable and when this is exhausted will
be reduced by the amount of any Social Security Sickness
Benefit or other benefits recoverable by the Executive
(whether or not recovered). For the avoidance of doubt
the provisions of this Clause 17 and any right or
prospective right the Executive has or may have to receive
any benefits under any permanent heath insurance scheme of
which the Executive becomes in any way the Company's right
to terminate this Agreement pursuant to Clauses 3.2 to 3.5
or otherwise pursuant to its terms.
17.6 Whether or not the Executive is absent by reason of
sickness, injury or other incapacity the Executive will at
the request of the Board agree to have a medical
examination performed by a doctor appointed and paid for
by the Company and the Executive hereby authorises the
Board to have unconditional access to any report or
reports (including copies) produced as a result of any
such examination as the Board may from time to time
require and entitlements to salary pursuant to Clause 17.2
will be conditional on the Executive complying with the
terms of this Clause 17.6.
Termination
18.1 The Company may terminate the Executive's
employment
immediately by summary notice in writing and without
making any further payment beyond the amount of any
remuneration actually accrued to the date of such
termination subject to rights of set-off (notwithstanding
that the Company may have allowed any time to elapse or on
a former occasion may have waived its rights under this
Clause) if he:-
18.1.1 commits, repeats or continues any serious breach of
any part of this Agreement or his obligations under
it or without reasonable cause neglects, refuses or
fails to discharge his duties herein or to obey
after prior written warning any reasonable
directions of the Company or otherwise fails to
observe and perform the provisions of this
Agreement and his duties hereunder
18.1.2 in the performance of his duties under this
Agreement or otherwise commits any act of gross
misconduct or serious incompetence or does or omits
to do any thing else which is seriously prejudicial
to the interests of the Company or any Group
Company;
18.1.3 adversely prejudices or because of his behaviour is
likely in the reasonable opinion of the Board to
prejudice adversely the interests or reputation of
the Executive, the Company or any Group Company;
18.1.4 is convicted of any criminal offence other than an
offence which does not in the opinion of the Board
affect his position under this Agreement;
18.1.5 becomes bankrupt or enters into or make any
arrangement or composition with or for the benefit
of his creditors generally;
18.1.6 becomes of unsound mind;
18.1.7 becomes incapacitated from performing all or any of
his duties under this Agreement by illness, injury
or otherwise for a period exceeding (in total) 13
weeks (or such longer period as the Company may
agree) in any period of 12 months from performing
all or any of his duties under this Agreement (save
where he is being paid under the provisions of any
permanent health insurance scheme maintained by the
Company); or
18.1.8 becomes prohibited by law from being a director of
a company or if the Executive ceases to be a
director of the Company without the consent or
concurrence of the Company.
18.2 Without prejudice to Clause 3.1 after notice of
termination has been given by either party pursuant to
Clause 3 or if the Executive seeks to or indicates an
intention to resign as a director of the Company or any
Group Company or terminate his employment, provided that
the Executive continues to be paid and enjoys his full
contractual benefits until his employment terminates in
accordance with the terms of this Agreement, the Board may
in its absolute discretion without breaking the terms of
this Agreement or giving rise to any claim against the
Company or any Group Company for all or part of the notice
period or fixed term (as the case may be):-
18.2.1 exclude the Executive from the premises of the
Company and/or any Group Company;
18.2.2 require him to carry out specified duties
(consistent with the Executive's status, role and
experience for the Company) other than those
referred to in Clause 4 or to carry out no duties;
18.2.3 announce to employees, suppliers and customers that
he has been given notice of termination or has
resigned (as the case may be);
18.2.4 instruct the Executive not to communicate orally or
in writing with suppliers, customers, employees,
agents or representatives of the Company or any
Group Company until his employment hereunder has
terminated.
18.3 Before and after termination of the Executive's
employment, the Executive will provide the Company and/or
any Group Company with assistance regarding matters of
which he has knowledge and/or experience in any
proceedings or possible proceedings in which the Company
and/or Group Company is or may be a party.
Deductions
19 The Executive hereby authorises the Company to deduct from
his remuneration (which for this purpose includes salary,
pay in lieu of notice, commission, bonus, holiday pay and
sick pay) all debts owed by the Executive to the Company
or any Group Company, including but without limitation the
balance outstanding of any loans (and interest where
appropriate) advanced by the Company to the Executive.
Sale or reconstruction of the Company
20 The Executive will have no claim against the Company or
any Group Company in respect of the termination (by
operation of law or otherwise) of his employment under
this Agreement on or in connection with the sale of the
whole or a substantial part of the business or undertaking
of the Company or on or in connection with the sale by the
Company of any Group Company or on or by reason of the
liquidation of the Company for the purposes of
amalgamation or reconstruction (whether or not by reason
of insolvency) if within 28 days of such an event he is
offered employment on no less favourable terms than those
contained in this Agreement (apart from the identity of
the employer) with any person, firm, company or
organisation which acquires such Group Company or which
acquires the whole or a substantial part of the
undertaking or business of the Company as a result of such
sale or of such amalgamation or reconstruction.
Delivery of documents and property
21. On termination of his employment for any reason (or
earlier if requested) the Executive will immediately
deliver up to the Company all property (including but not
limited to documents and software, credit cards, keys and
security passes) belonging to it or any Group Company in
the Executive's possession or under his control.
Documents and software include (but are not limited to)
correspondence, diaries, address books, databases,
files, reports, minutes, plans, records, documentation or
any other medium for storing information. The Executive's
obligations under this Clause include the return of all
copies, drafts, reproductions, notes, extracts or
summaries (however stored or made) of all documents and
software.
Resignation as director
22.1 The Executive will on termination of his employmentfor
any reason at the request of the Board give notice
resigning immediately without claim for compensation (but
without prejudice to any claim he may have for damages for
breach of this Agreement):-
22.1.1 as a director of the Company and all such Group
Companies of which he is a director; and
22.1.2 all trusteeships held by him of any pension scheme
or other trusts established by the Company or any
Group Company or any other company with which the
Executive has had dealings as a consequence of his
employment with the Company.
22.2 If notice pursuant to Clause 22.1 is not received by the
relevant company within seven days of a request by the
Company, the Company is irrevocably authorised to appoint
a person to execute any documents and to do everything
necessary to effect such resignation or resignations on
the Executive's behalf.
22.3 Except with the prior written agreement of the Board, the
Executive will not during his employment under this
Agreement resign his office as a director of the Company
or any Group Company and if he does so without the consent
or concurrence of the Company, the Company will be
entitled to terminate his employment pursuant to Clause
18.1.8 or at the Company's absolute discretion, to treat
such resignation as notice of termination given by the
Executive to the Company pursuant to Clause 3.2 and to
suspend the Executive pursuant to Clause 18.2.
22.4 The Executive's appointment as a director of the Company
or any other Group Company will be subject to the Articles
of Association from time to time of the relevant company.
Rights following termination
23 The termination of the Executive's employment under this
Agreement will not affect any of the provisions of this
Agreement which expressly operate or lawfully have effect
after termination and will not prejudice any right of
action already accrued to either party in respect of any
breach of any terms of this Agreement by the other party.
Disciplinary and grievance procedures
24 The Company does not have a formal disciplinary procedure
which is applicable to the Executive.
Notices
25. Notice under this Agreement by the Executive to the
Company should be addressed to the Company and left at its
registered office or is sent by first class post to its
registered office and notices given by the Company to the
Executive should be served personally or sent by first
class or sent by facsimile transmission to his usual or
last known place of residence in England and in case of
service by post the day of service will be 48 hours after
posting.
Miscellaneous
26.1 This Agreement shall be governed by and interpreted in
accordance with the law of England and Wales.
26.2 The parties to this Agreement submit to the exclusive
jurisdiction of the English Courts in relation to any
claim, dispute or matter arising out of or relating to
this Agreement.
26.3 Any delay by the Company in exercising any of its rights
under this Agreement will not constitute a waiver of such
rights.
26.4 This Agreement contains the particulars required to be
given under section 1 of the Employment Protection
(Consolidation) Xxx 0000 as amended by the 1996 Act
("EPA") and comprises the note referred to in section 1
(4) of the EPA to the intent that, as at the date of this
Agreement, the Company shall not be required to deliver to
the Executive a separate written statement pursuant to
section 1 of the EPA
IN WITNESS WHEREOF THIS AGREEMENT has been signed on behalf of
the Company by a Director and executed and delivered as a
deed by the Executive on the date set out at the
beginning.
SIGNED by
for and on behalf of THE COMPANY
.....................................
Director
EXECUTED AND DELIVERED )
by THE EXECUTIVE in the )
presence of:-
)....................................
Witness:
Signature:
.............................................
Name:
.............................................
Address:
.............................................
