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Exhibit 10.21
DATED May 12, 1998
CAMINUS ENERGY LIMITED.
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XX. XXXXX X. XXXXX
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SERVICE AGREEMENT
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This AGREEMENT is made as of the 12th day of May, 1998 between CAMINUS
ENERGY LIMITED, a company incorporated in the United Kingdom whose registered
office is Xxxxxxx Xxxxx, Xxxxxx Xxxx, Xxxxxxxxx XX0 XXX, Xxxxxx Xxxxxxx (the
"COMPANY") and Xx. Xxxxx X. Xxxxx, Ph.D., of Xxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxx,
Xxxxxxx, Xxxxxxx, Xxxxxx Xxxxxxx (the "EMPLOYEE").
IT IS AGREED as follows:
1. APPOINTMENT AND TERM
1.1. The Employee will be employed by the Company as the Chief Executive
Officer of the Company and shall continue to be a director and
Chairman of the Board of Directors of the Company (the "BOARD").
1.2. His employment in that capacity and pursuant to this Agreement is
deemed to have begun on the date hereof and will continue, subject to
the terms of this Agreement, until May 5, 2001, unless sooner
terminated pursuant to the provisions of this Agreement; provided that
the term hereof shall be automatically renewed for successive one (1)
year periods unless notice of a desire not to renew is provided by
either party at least thirty (30) days prior to the expiry of this
Agreement.
2. DUTIES, ETC.
2.1. During the continuance of his employment the Employee agrees to devote
his full time and best efforts, skill and abilities to the business
and affairs of the Company and will:
2.1.1. perform:
(A) the day to day management duties consistent with the
position of Chief Executive Officer of the Company;
and
(B) such other duties as may from time to time be
assigned to him by the Board, whether those duties
relate to the business of the Company or to the
business of any subsidiary or associate of the
Company;
2.1.2. in all respects comply with directions given by or under the
authority of the Board;
2.1.3. use his reasonable endeavors to promote the interests of the
Company;
2.1.4. unless prevented by incapacity or disability, devote the whole
of his time and attention during usual business hours to the
performance of his duties under this Agreement; and
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2.1.5. not carry on or be interested, directly or indirectly, in a
Competing Business (as defined in Section 8.1.1 hereof)
without the prior written consent of the Board.
2.2. Provided, that the foregoing shall not limit the Employee from
performing charitable activities, managing personal passive
investments or serving on the board of directors of another entity to
the extent that such outside activities do not in any material way
detract from the Employee's performance of his duties hereunder or
conflict with the provisions of this Agreement.
2.3. The agreed hours of work of the Employee will be normal business hours
and such other hours as may be required for the proper performance of
his duties under this Agreement; and he will perform those duties in
Cambridge, United Kingdom. The Employee acknowledges that he will be
required to travel in the ordinary course of the Company's business as
the reasonable needs of the Company shall require. Notwithstanding
the foregoing, the Company shall not relocate the Employee from
Cambridge, England, without the Employee's prior written consent.
2.4. Notwithstanding the foregoing provisions of this clause, if notice is
served by either party pursuant to clause 9.1 below, for up to a
maximum of six (6) months the Company shall not be obliged to provide
any work for the Employee or to assign to or vest in the Employee any
powers, duties or functions and may in its discretion suspend the
Employee on full salary and other contractual benefits save as below
and require the Employee: not to enter any premises of the Company or
any subsidiary or associate of the Company (except GFI Caminus LLC in
accordance with the provisions of the LLC Agreement as defined in
Clause 9.4); to abstain from contacting any customers, clients or
employees of the Company or any subsidiary or associate of the
Company; and to resign from all offices in the Company, or any
subsidiary or associate of the Company (except GFI Caminus LLC in
accordance with the provisions of the LLC Agreement). The Employee
irrevocably authorises the Company in his name and on his behalf to
execute all documents and do all things necessary to effect the
resignations referred to herein, in the event of his failure to do so.
The Employee shall not be employed by or provide services to any third
party during the period for which he is suspended pursuant to this
clause. Unless such suspension is for Cause (as defined in Section
9.2 below), the Employee shall be entitled to a bonus in respect of
the period of any such suspension; provided, however, that Employee
shall have no claim in respect of the effect (if any) which any such
suspension may have on his entitlement in respect of any other period.
3. SALARY, BENEFITS AND EXPENSES
3.1. During the continuance of his employment, the Employee will be
entitled to a salary at the rate of Pound Sterling 200,000 per annum,
which shall be inclusive of any other sums receivable as director's
fees or other remuneration payable to non-employee directors of the
Company. The Employee shall be entitled to an annual bonus payment
(which is targeted at Pound Sterling 100,000) in addition to his salary
and other
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benefits, with the actual bonus amount to be based upon a review of
performance by the Board following the conclusion of each year.
3.2. The Employee's salary will accrue from day to day during the
continuance of his employment, be payable by equal monthly
installments on the last working day of each month in accordance with
the Company's payroll practices in effect from time to time. The
Employee shall be eligible to participate in the Company's annual
profit sharing plan for key employees (which, at the discretion of the
Board, may be, in whole or in part, a profit sharing or incentive plan
based upon the performance of GFI Caminus LLC, the parent entity of
the Company ("PARENT"), and in each other benefit plan made generally
available to officers and key employees of the Company, on terms and
conditions no less favorable than those provided to officers of the
Company at similar levels as Employee.
3.3. The Employee shall be reimbursed for all reasonable and necessary
business expenses incurred by him in the performance of his duties
hereunder. The Company shall reimburse him upon presentation to the
Company of receipts and an itemized account of such expenses in
accordance with the Company's reimbursement policy. At the reasonable
discretion of Employee, Employee shall be entitled to fly business
class in accordance with the policies of the Company.
3.4. The Company shall not be liable to pay or provide any pension to or
for the benefit of the Employee, except for the contribution by the
Company into a personal pension plan in accordance with the Company's
staff handbook, as the same may be reviewed from time to time. The
Company will pay the Employee's telephone bills related to Company
business and Employee shall be entitled to participate in the
Company's permanent health insurance policy.
3.5. The Board shall review the Employee's compensation not less frequently
then every twelve (12) months. Following such review, the Board may,
in its discretion, increase the Employee's compensation (including, in
the discretion of the Board, the Employee's salary and bonus).
4. HOLIDAYS
4.1. The Employee will be entitled to five (5) weeks' holiday in each
calendar year, to be taken at such times as may be approved by the
Board, in addition to public holidays. The Employee is entitled to
carry forward up to five (5) days unused holiday entitlement to a
subsequent year. Except as provided in Clause 4.2, no payment will be
made by the Company during the continuance of this Agreement in lieu
of holidays not taken or not accrued.
4.2. Upon termination of this Agreement for whatever reason the Employee
shall be entitled to payment in lieu on a pro rata basis for any
holidays not taken (other than public holidays) which have accrued in
the calendar year in which the Date of Termination falls. The payment
will be calculated by multiplying the accrued entitlement by 1/260 of
the Employee's salary at that time.
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4.3. In addition to his holiday entitlement, the Employee is entitled to
five (5) days paternity leave per child.
5. INTERESTS IN OTHER BUSINESSES
5.1. Save with the prior written consent of the Board (which consent shall
not be unreasonably withheld or delayed), the Employee will not during
the continuance of his employment be engaged or interested (except as
the holder for investment of up to five percent (5%) of any class of
securities quoted or dealt on a recognized stock exchange) either
directly or indirectly in any business or occupation other than the
business of the Company and its subsidiaries and associates.
6. INVENTIONS AND OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY
6.1. Any invention or improvement or design made or process or information
discovered or copyright work or trade xxxx or trade name or get-up
created by the Employee during the continuance of the employment
hereunder (whether capable of being patented or registered or not and
made or discovered in the course of but not outside his employment
hereunder) in conjunction with or in any way affecting or relating to
the business of the Company or capable of being used or adapted for
use therein or in connection therewith shall forthwith be disclosed to
the Company and shall (subject to sections 39 to 43 Patents Act 1977)
belong to and be the absolute property of the Company.
6.2. The Employee if and whenever required to do so by the Company shall at
the Company's expense:
(A) apply or join with the Company in applying for
letters patent or other protection or registration in
the United Kingdom and in any other part of the world
for any such invention improvement design process
information work trade xxxx, trade name or get-up as
aforesaid which belongs to the Company; and
(B) execute and do all instruments and things necessary
for vesting the said letters patent or other
protection or registration when obtained and all
right title and interest to and in the same
absolutely and as sole beneficial owner in such
company or in such other person as the Company may
specify.
6.3. The Employee hereby irrevocably appoints the Company to be his
Attorney in his name and on his behalf to execute and do any such
instrument or thing and generally to use his name for the purpose of
giving to the Company the full benefit of this clause. In favor of
any third party a certificate in writing signed by any Director or by
the Secretary of the Company that any instrument or act falls within
the authority hereby conferred shall be conclusive evidence that such
is the case.
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6.4. Nothing in this clause shall be construed as restricting the rights of
the Employee or the Company under sections 39 to 43 Patents Xxx 0000.
6.5. The Employee irrevocably and unconditionally waives all rights under
Chapter IV of Part I of the Copyright, Designs and Patents Xxx 0000
("MORAL RIGHTS") in connection with his authorship of any existing or
further copyright work, in whatever part of the world such rights may
be enforceable including, without limitation:
6.5.1. the right conferred by section 77 of that Act to be identified
as the author of any such work; and
6.5.2. the right conferred by section 80 of that Act not to have any
such work subjected to derogatory treatment.
6.6. For all purposes of this Clause 6, references to the "Company" shall
be deemed to include all predecessors, successors or associate
entities and businesses.
7. CONFIDENTIALITY
7.1. The Employee will not during the continuance of his employment or
afterwards (unless authorized to do so by the Board or by a court of
competent jurisdiction):
7.1.1. use for his own benefit or the benefit of any other person;
7.1.2. disclose to any person; or
7.1.3. through any failure to exercise all due care and diligence
cause or permit any unauthorized disclosure of
any confidential information of the Company (including any predecessor
or successor entity) or any of its subsidiaries or associates which he
has obtained by virtue of his employment or in respect of which the
Company is bound by an obligation of confidence to a third party.
"Confidential information" means all information which is known or
intended to be known only to employees of the Company and shall
include, without limitation, lists or details of customers' information
relating to the working of any process or invention carried on,
developed or used by the Company or any subsidiary or associate,
information relating to research projects, any intellectual property
referred to in Clause 6, prices, discounts, xxxx-ups, future business
strategy, marketing, tenders and any price sensitive information.
7.2. The restriction in this Clause will not prevent the Employee, after
the Date of Termination, from using, for his own or another's benefit,
any information which becomes available to the public generally other
than by reason of a breach by Employee of his obligations under this
Agreement but any such use will be subject to the restrictions
contained in Clause 8 below.
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8. PROTECTION OF INTERESTS OF COMPANY, ETC.
8.1. In this clause:
8.1.1. "COMPETING BUSINESS" shall mean any business that competes or
has competed, directly or indirectly, with the Company
Business in any country or countries in which the Company has
conducted business within the past two (2) years prior to the
Date of Termination;
8.1.2. "COMPANY BUSINESS" shall mean the development and marketing of
consulting advisory services and supporting models used to
analyze or influence client and industry decisions regarding
energy pricing, investments, regulatory policy and financial
and strategic planning for clients in the natural gas, crude
oil, refined products, electric power and utility industries;
8.1.3. "TERM" means the period commencing on the Date of Termination
of this Agreement and expiring on the first anniversary of the
Date of Termination of Employee's employment by the Company
(less any period of "garden leave" utilized by the Company
under Clause 2.4) for any reason.
8.1.4. References to acting directly or indirectly include (without
prejudice to the generality of that expression) references to
acting alone or jointly with or by means of any other person.
8.2. Until the expiry of the Term the Employee will not directly or
indirectly:
8.2.1. carry on or be interested in a Competing Business save that he
may hold for investment up to five percent (5%) of any class
of securities quoted or dealt in on a recognized stock
exchange;
8.2.2. act as a consultant, employee or officer in any executive,
sales, marketing, research or technical support capacity in a
Competing Business.
8.3. Until the expiry of the Term the Employee will not directly or
indirectly:
8.3.1. solicit, canvass or approach or endeavour to solicit, canvass
or approach in respect of the Company Business and in
competition with the Company or, as the case may be, in
competition with the relevant subsidiary or associate any
person for the purpose of offering to that person any services
comprised in the Company Business:
(A) who, to the knowledge of the Employee, has been
provided with services by the Company or any
subsidiary or associate of the Company at any time
prior to the Date of Termination; or
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(B) who, to the knowledge of the Employee, has been
negotiating with the Company or any subsidiary or
associate of the Company for the supply of services
at any time prior to the Date of Termination;
8.3.2. supply in competition with the Company or, as the case may be,
in competition with the relevant subsidiary or associate any
services comprised in the Company Business to any person who,
to the knowledge of the Employee, has been provided with
services by the Company or any subsidiary or associate of the
Company at any time prior to the Date of Termination;
8.3.3. solicit or entice away or endeavor to solicit or entice away
from the Company or any subsidiary or associate of the Company
in competition with the Company or, as the case may be, in
competition with the relevant subsidiary or associate any
person employed within the prior six (6) months in an
executive, managerial, technical or sales capacity by the
Company or any subsidiary or associate of the Company at the
Date of Termination with a view to inducing that person to
leave such employment and to act for another person in the
Company Business; and
8.3.4. hire, solicit or in any other manner seek to engage or employ
any person who within the prior six (6) months had been any
employee in an executive, managerial, technical or sales
capacity of the Company or any subsidiary or associate of the
Company.
8.4. Each of the restrictions in sub-clauses 8.2.1, 8.2.2, 8.3.1, 8.3.2,
8.3.3 and 8.3.4 hereof are separate and severable and in the event of
any such restriction (including the defined expressions in sub-clause
8.1) being determined as being unenforceable in whole or in part for
any reason such unenforceability shall not affect the enforceability
of the remaining restrictions or, in the case of part of a restriction
being unenforceable, the remainder of the restriction.
9. TERMINATION
9.1. Except as otherwise provided herein, either party will be entitled to
terminate the employment of the Employee by giving to the other not
less than three (3) months' written notice; provided, however, that in
any successive one (1) year renewals of this Agreement, thirty (30)
days written notice shall be required. In the event of such
termination:
9.1.1. by the Company without Cause (as defined in Clause 9.2) or by
the Employee by virtue of constructive dismissal, the Company
shall pay to the Employee the Employee's current salary, bonus
and other benefits as at the date of the notice of termination
for a period of twelve (12) months from the Date of
Termination payable in equal monthly installments. Subject to
Clauses 9.5 to 9.7, the Company shall have no
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other liability in connection with the exercise of its right of
termination pursuant to this Clause 9.1; and
9.1.2. by the Employee (other than by constructive dismissal under
Clause 9.1.1), the Company shall pay to the Employee all
accrued salary, bonus and other benefits at the Date of
Termination, but the Company shall have no other liability in
connection with the exercise by the Employee of its right of
termination pursuant to Clause 9.1.
9.2. Notwithstanding anything in this Agreement to the contrary, the
Company will be entitled to terminate the employment of the Employee
by written notice, specifying the basis for the termination of the
Employee and specifying the Date of Termination if he commits or
suffers any of the following acts or circumstances ("CAUSE"):
9.2.1. willfully destroying Company property having a material value
to the Company and without the prior consent of the Company;
9.2.2. engaging in, committing, or aiding or abetting, directly or
indirectly, the engagement of or commission of fraud,
embezzlement, theft, or comparable dishonest activity;
9.2.3. the conviction of or entering of a plea of guilty or no
contest to any crime other than a traffic infraction;
9.2.4. the failure to materially discharge his duties under this
Agreement commensurate with Employee's title and function or a
material breach of this Agreement (not being remedied within
five (5) days of being required to do so);
9.2.5. the making of a material misrepresentation to the Company, the
Board of Directors, or to any officer(s) to whom the Employee
reports;
9.2.6. becoming of unsound mind or becoming a bankrupt or compounding
with his creditors; or
9.2.7. becoming prohibited by law from being a director of the
Company.
9.3. This Agreement shall terminate automatically upon the death of the
Employee or the Company may at any time terminate this Agreement by
written notice if the Employee is absent or unable to perform the
Employee's duties with the Company on a full time basis as a result of
incapacity due to mental or physical illness for any period of (i) one
hundred twenty (120) consecutive days or (ii) for one hundred twenty
(120) days in any period of two hundred and seventy (270) consecutive
days. In the event of death or incapacity, that results in the
termination of the employment of the Employee, the Company shall pay
the Employee (or any estate, beneficiary or legal representative of
the Employee) all accrued salary, bonus and other benefits as of the
date of death or Date of Termination due to incapacity. Except as set
forth in this Clause 9.3 or Clause
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9.6, the Company shall have no further obligations under this
Agreement in connection with any termination of this Agreement arising
from the death or termination due to incapacity of the Employee.
9.4. If this Agreement is terminated for any reason (excluding a
termination of Employee by the Company without Cause or constructive
dismissal) prior to the completion of a Qualified Public Offering (as
defined in the Limited Liability Company Agreement of Parent (the "LLC
AGREEMENT")) (an "OPTION EVENT"), the Company or Parent shall have the
right and option, in the discretion of the Board, to purchase, at any
time during the ninety (90) days following the occurrence of an Option
Event, any or all of the securities of the Company or Parent
(collectively, the "SECURITIES") then owned by the Employee including
all such Securities acquired by any other Person pursuant to a
Permitted Transfer (as defined in the LLC Agreement) and including any
legal representative, estate, beneficiary, executor, administrator or
trustee of the Employee (the "REPRESENTATIVE") in the event of the
death or termination due to incapacity of the Employee (the "PURCHASE
OPTION"). The following provisions shall apply in relation to such
Purchase Option:
9.4.1. the price to exercise the Purchase Option shall be determined
in accordance with the provisions as set forth in Appendix B
to the LLC Agreement;
9.4.2. the exercise of the Purchase Option shall be by means of a
written notice of exercise (the "OPTION NOTICE") delivered by
the Company to the Employee and/or Representative;
9.4.3. payment for such Securities shall be made in cash in three (3)
equal installments, with the first installment payable on
closing date of the exercise of the Purchase Option , which
date shall be no later than thirty (30) days following the
date of the Option Notice or such longer period as may be
reasonably necessary to determine the purchase price, and the
two (2) subsequent installment payments payable on the first
and second anniversary dates of such closing date. Each of
the latter two payments shall include interest computed at the
rate of eight percent (8%) simple interest per annum, payable
in arrears on the unpaid amount of the purchase price; and
9.4.4. the Board of Directors shall have the option to transfer and
assign the Purchase Option to any designee.
9.5. Upon termination of the Agreement by the Company without Cause
pursuant to Clause 9.1.1 prior to a Qualified Public Offering:
9.5.1. the Employee shall have the right (the "TERMINATION PUT") to
put Securities held by the Employee (including such Securities
acquired by any other Person pursuant to a Permitted Transfer)
to the Company;
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9.5.2. such Securities shall be valued in the same manner as
described in Clause 9.4 above, and the payment terms of Clause
9.4 shall apply equally to an exercise of the Termination Put;
9.5.3. the Termination Put shall be exercised, if at all, by written
notice from the Employee to the Company within sixty (60) days
following the Date of Termination;
9.5.4. each disposition of Securities pursuant to a Termination Put
shall be free and clear of any and all liens, claims, charges
and encumbrances; and
9.5.5. the Board shall have the option to transfer and assign its
obligations under the Termination Put to any designee.
9.6. During the term of this Agreement prior to a Qualified Public
Offering, the Company shall use commercially reasonable efforts to
maintain a key man insurance policy on the life of the Employee for
coverage equal to two million five hundred thousand dollars
($2,500,000), which policy shall be owned by, and under which policy
the beneficiary shall be, the Company or the Parent. Subject to the
Company being able to secure such insurance:
9.6.1. in the event of Employee's death prior to a Qualified Public
Offering, the Representative shall have the right (the "PUT")
to put Securities held by Employee (including such Securities
acquired by any other Person pursuant to a Permitted Transfer)
to the Company;
9.6.2. such Securities shall be valued in the same manner as
described in Clause 9.4 above and the amount thereof that may
be the subject of the Put shall not exceed the net proceeds
actually obtained by the Company pursuant to the foregoing
life insurance policy;
9.6.3. if properly exercised, the Put shall be settled in cash
promptly following receipt of insurance proceeds by the
Company. The Put shall be exercised, if at all, by written
notice from the Representative to the Company within one
hundred twenty (120) days following Employee's death;
9.6.4. each Disposition of Securities pursuant to a Put shall be free
and clear of any and all liens, claims, charges and
encumbrances; and
9.6.5. to the extent that the foregoing life insurance is not
available on commercially reasonable terms or an exclusion
from coverage is applicable, the Put shall not be available.
9.7. On or before the Date of Termination (for whatever reason and
howsoever caused) the Employee will promptly:
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9.7.1. resign (if he has not already done so) from all offices and
directorships held by him in the Company and its subsidiaries
and associates;
9.7.2. deliver up to the Company all lists of customers,
correspondence, documents, credit cards and other property
(including but not limited to any motorcar) belonging to the
Company or any of its subsidiaries or associates which may be
in his possession or under his control; and
9.7.3. the Employee irrevocably authorizes the Company in his name
and on his behalf to execute all documents and do all things
necessary to effect the resignations referred to above, in the
event of his failure to do so.
9.8. The Employee agrees that for the purposes of the Employment Rights Xxx
0000 the Company may apply any sums which may be due from the Company
to the Employee (including, without limitation, accrued salary and/or
holiday pay) at the Date of Termination (for whatever reason and
howsoever caused) against any sums which may be due from the Employee
to the Company and the Employee further agrees that in the event of
his failure to give due notice of termination of this Agreement under
Clause 9.1 above, the Company may retain any such sums without
prejudice to its right to claim damages for any additional loss it may
suffer as a result of the Employee's failure to give due notice of
termination.
10. SICKNESS BENEFITS
10.1. The Company shall continue to pay the Employee's salary bonus and
other benefits during any period of absence on medical grounds up to a
maximum of sixty (60) working days in any period of twelve (12) months
provided that the Employee shall:
(A) notify the Company immediately of his absence when
such absence commences and comply with the Company's
requirements for notification and documentation of
details involved in such sickness or incapacity;
(B) supply the Company with medical certificates covering
any period of sickness or incapacity which is in
excess of seven or more consecutive days, such
medical certificates to be supplied at weekly
intervals or at such longer intervals as the Board
consider reasonable from the eighth day of absence;
and
(C) following any period of absence on medical grounds
the Employee shall at the request of the Board
provide in writing such details as the Company may
require in order to calculate any Statutory Sick Pay
entitlement.
10.2. For Statutory Sick Pay purposes the Employee's qualifying days shall
be Monday to Friday inclusive.
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10.3. Payment in respect of any other or further period of absence shall be
at the Company's discretion. Any payment to the Employee pursuant to
clauses 10.1 and 10.3 shall be subject to set off by the Company in
respect of any Statutory Sick Pay and any Social Security Sickness
Benefit or other benefits to which the Employee may be entitled.
10.4. If the Employee's absence shall be occasioned by the actionable
negligence of a third party in respect of which damages are
recoverable, then the Employee shall:
(A) notify the Company immediately of all relevant
circumstances and of any claim, compromise,
settlement or judgment made or awarded in connection
with it; and
(B) if the Company so requires, refund to the Company any
amount received by him from any such third party
provided that the refund shall be no more than the
amount which he had recovered in respect of
remuneration.
11. WAIVER OF RIGHTS
11.1. The Employee will have no claim against the Company or any subsidiary
or associate of the Company in respect of a termination if:
11.1.1. the employment of the Employee is terminated:
(A) by reason of the liquidation of the Company for the
purpose of solvent amalgamation or reconstruction; or
(B) as part of any arrangement for the amalgamation of
the undertaking of the Company not involving
liquidation or for the transfer of the whole or part
of the undertaking of the Company to any of its
subsidiaries or associates; and
11.1.2. the Employee is offered employment of a similar nature with
the amalgamated or reconstructed or transferee company for a
period of not less than the then unexpired term of his
employment under this Agreement and on terms not generally
less favourable to him than the terms of this Agreement.
12. ADDITIONAL PARTICULARS
12.1. The following additional particulars are given for the purposes of the
Employment Rights Xxx 0000:
12.1.1. the employment of the Employee by the Company began on
February 22, 1985;
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12.1.2. no employment of the Employee with a previous employer counts
as part of the Employee's continuous employment with the
Company and his period of continuous employment began on
February 22, 1985;
12.1.3. except as otherwise provided by this Agreement, there are no
terms or conditions of employment relating to hours of work or
to normal working hours or to entitlement to holidays
(including public holidays) or holiday pay or to incapacity
for work due to sickness or injury or to pensions or pension
schemes or requiring the Employee to work outside the United
Kingdom for a period of more than two months;
12.1.4. there are no collective agreements which directly affect the
terms or conditions of the Employee's employment.
12.1.5. This Agreement constitutes the written statement of the terms
of employment of Employee provided in compliance with the
Employment Rights Xxx 0000.
13. ENTIRE AGREEMENT
13.1. This Agreement represents the entire understanding, and constitutes
the whole agreement, in relation to its subject matter and supersedes
any previous agreement between the parties with respect thereto and,
without prejudice to the generality of the foregoing, excludes any
warranty, condition or other undertaking implied at law or by custom.
13.2. Each party confirms that, except as provided in this Agreement, no
party has relied on any representation or warranty or undertaking
which is not contained in this Agreement, and, without prejudice to
any liability for fraudulent misrepresentation, no party shall be
under any liability or shall have any remedy in respect of
misrepresentation or untrue statement unless and to the extent that a
claim lies under this Agreement.
14. OBLIGATIONS TO THIRD PARTIES
14.1. The Employee warrants that by virtue of entering into this Agreement
and performing the duties set out in this Agreement he will not be in
breach of any contract of service or for the provision of services or
any partnership agreement and will, save as implied by law, be free
from all agreements, arrangements or other restrictions restricting
his right to compete with any person or to solicit clients or
employees of any person or in any way restricting him from performing
this Agreement in accordance with its terms.
14.2. None of the provisions of this Agreement will be for the benefit of,
or enforceable by, any third party beneficiary, except that each
designee selected by the Company pursuant to Clauses 9.4.4 or 9.5.5
and Parent are intended as third party beneficiaries of all rights of
the Company hereunder.
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15
15. ASSIGNMENT
The Company reserves the right forthwith on written notice to the
Employee to assign its rights and obligations under this Agreement to
any subsidiary or associate of the Company and any reference to the
Company in this Agreement shall thereafter be a reference to any such
company; provided, however, any assignment of this Agreement to a
non-United Kingdom entity shall require the prior written consent of
the Employee (which consent shall not be unreasonably withheld or
delayed). Notwithstanding the foregoing to the contrary, the Company
shall be entitled to assign this Agreement to any corporation or other
business entity that succeeds to all or substantially all of the
business of the Company through merger, consolidation, corporate
reorganization or by acquisition of all or substantially all of the
assets or capital stock of the Company, provided that the successor or
surviving entity that acts as Employee's employer is a United Kingdom
entity, without the prior written consent of Employee.
16. NOTICES
16.1. A notice, approval, consent or other communication given under or in
connection with this Agreement (in this clause known as a "NOTICE"):
16.1.1. must be in writing;
16.1.2. must be left at the address of the addressee or sent by
pre-paid first class post (airmail if posted to or from a
place outside the recipient's respective country) to the
address of the addressee or sent by telex or facsimile to the
telex or facsimile number of the addressee in each case which
is specified in this clause, and marked for the attention to
the person so specified, or such other address as specified,
telex or facsimile number and/or marked for the attention of
such other person as the relevant party may from time to time
specify by Notice given in accordance with this clause.
The relevant details of each party at the date of this
Agreement are:
The Company
Address: Xxxxxxx Xxxxx
Xxxxxx Xxxx
Xxxxxxxxx,
XX0 XXX
Xxxxxx Xxxxxxx
Facsimile: 000 00 0000 322 736
Attention: Managing Director
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The Employee
Address: Xxx Xxxxx, Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxx,
Xxxxxxx, Xxxxxx Xxxxxxx
Attention: Xx. Xxxxx X. Xxxxx
16.1.3. A copy of any notice served on the Company shall be sent to:
GFI Caminus LLC
c/o GFI Energy Ventures LLC
00000 Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Facsimile: 001 310 442 0540
Attention: Xxxxxxxx X. Xxxxxx
16.2. In the absence of evidence of earlier receipt, any Notice shall take
effect from the time that it is deemed to be received in accordance
with sub-clause 16.3 below.
16.3. Subject to sub-clause 16.4 below, a Notice is deemed to be received:
16.3.1. in the case of a notice left at the address of the addressee,
upon delivery at that address;
16.3.2. in the case of a posted letter, on the third day after posting
or, if posted to or from a place outside the recipient's
respective country, the tenth day after posting;
16.3.3. in the case of a facsimile, on production of a transmission
report from the machine from which the facsimile was sent
which indicates that the facsimile was sent in its entirety to
the facsimile number of the recipient provided that a
confirmatory copy of such facsimile shall have been sent by
post in accordance with sub-clause 16.1 within 24 hours of
such transmission.
16.4. A Notice received or deemed to be received in accordance with
sub-clause 16.3 above on a day which is not a business day or after 5
p.m. on any business day according to local time in the place of
receipt, shall be deemed to be received on the next following business
day.
17. GOVERNING LAW
17.1. This Agreement shall be governed by, and construed in accordance with,
English Law. All disputes shall be referred to the High Court of
Justice in England and Wales, to the extent permitted.
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17
18. DEFINITIONS AND MISCELLANEOUS
18.1. "ASSOCIATE" means a body corporate which for the time being: is a
holding company of the Company or a subsidiary (other than the
Company) of such a holding company; or has not less than 20 per cent
of its equity share capital beneficially owned by such a holding
company or the Company.
18.2. "DATE OF TERMINATION" shall mean the date on which the employment of
the Employee by the Company terminates save pursuant to an assignment
by the Company pursuant to clause 14 above in which case it shall mean
the date on which his employment with such assignee shall terminate.
18.3. "SUBSIDIARY", "HOLDING COMPANY" and "EQUITY SHARE CAPITAL" have the
meaning attributed to them by sections 736, 736A and 744 of the
Companies Xxx 0000 provided that the term "subsidiary" shall also
include a subsidiary undertaking (as defined in section 258 of the
Companies Act 1985).
18.4. In this Agreement: unless otherwise stated and except in Clause 13
above, a reference to the employment of the Employee is to his
employment by the Company (or if appropriate any assignee pursuant to
Clause 15) under this Agreement.
18.5. Unless the context otherwise requires, words in the singular include
the plural and vice versa, and a reference to a person includes a
reference to a body corporate and to an unincorporated body of
persons.
18.6. A reference to a statute or statutory provision includes a reference
to that statute or provision as from time to time modified or
re-enacted.
18.7. Clause headings are for convenience only and have no legal effect.
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IN WITNESS whereof the parties hereto have executed this Agreement as a Deed on
the day and year first above written.
SIGNED AS A DEED by )
in the presence of: )
/s/ Xxxxx X. Xxxxx
------------------------
signature of Employee
Signature of Witness /s/ X. Xxxxxxxxx
Name of Witness X. Xxxxxxxxx
1R Hills Road
Cambridge, U.K.
Address of Witness
SIGNED AS A DEED by the Company )
acting by two of its directors )
/s/ Xxxxxxx X. Xxxxxxxx
------------------------
Director
/s/ Xxxxxx Xxxxxxxxxxxx
------------------------
Director
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