A SERVICE AGREEMENT
-----------------------------
in respect of
XXXXXX XXXX XXXXXX
and
EAST MIDLANDS ELECTRICITY plc
Amendment No. 4
dated 2 December 1995
-----------------------------
In accordance with Clause 6.2 of the Service Agreement in respect of Xxxxxx Xxxx
Xxxxxx and East Midlands Electricity plc ("the Company") dated 17 February 1994,
the Remuneration and Nomination Committee reviewed the salary payable under
Clause 6.1 and approved an increase of salary from (pound)161,200 per annum to
(pound)166,100 per annum with effect from 1 December 1995.
Therefore, Clause 6.1 shall be deemed to be amended accordingly in respect of
the year from 1 December 1995 to 30 November 1996.
Save as amended, the Service Agreement shall continue in full force and effect
and this Amendment and the Service Agreement shall be read and construed
together.
/s/ J G M XXXXXXXX
-------------------------------------
J G M Xxxxxxxx
Secretary
Remuneration and Nomination Committee
[LOGO] East Midlands
Electricity
Our ref 000 Xxxxxxx Xxxx Xxxxxx
Your ref Xxxxxxxxxx XX0 0XX
Tel (0000)000 0000 or
(0000)000 0000
Fax (0000)000 0000
PERSONAL
X X Xxxxxx Esq
Xxxxxxxxxx
Shut Xxxx Head
Xxxxxxxxx
NEWCASTLE-UNDER-LYME
Staffs
ST5 4DS
6 December 1994
The purpose of this letter is to record the amendments which have been agreed
between us to your service contract dated 17 February 1994 with East Midlands
Electricity plc ("the Company") as amended by an agreement dated 29 July 1994.
We have agreed that the service contract will be amended as follows:
Normal Retirement Age
1. By the deletion of the definition of "Normal Retirement Age" and its
replacement by the following new definition:
"Normal Retirement Age
The age of 60."
Termination of Appointment
2. By the deletion of Clause 2.2 and its replacement by the following new
Clauses 2.2 to 2.4:
"2.2 The Appointment shall (subject to earlier termination as otherwise
provided in this Agreement) be for a period starting on or with
effect from the Commencement Date and continuing unless and until
terminated by the Company giving to the Appointee not less than two
years' notice in writing or by the Appointee giving to the Company
not less than one year's notice in writing. The Company reserves
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6 December 1994
X X Xxxxxx Esq
the right to terminate the Appointment at any time by paying to the
Appointee a sum equal to the basic salary that would have been
payable under Clause 6.1 over the two year notice period, assuming
that salary had continued to be paid at the same rate as
immediately prior to the date of termination.
2.3 If the Appointment is terminated by the Company (or the Appointee
leaves employment in circumstances where he is entitled to treat
himself as being constructively dismissed) otherwise than in
accordance with Clause 2.2 and in circumstances when the Company is
not entitled to terminate the Appointment under any other provision
of this Agreement, then the Company shall pay to the Appointee by
way of liquidated damages a sum equal to 1.5 times the Appointee's
basic salary under Clause 6.1, assuming that salary had continued
to be paid at the same rate as immediately prior to the date of
termination. Any such payment of liquidated damages shall be in
full and final settlement of all and any claims (whether
contractual, statutory or otherwise) which the Appointee may have
arising out of termination of the Appointment or his ceasing to
hold the office of director of the Company or any Associated
Company.
2.4 Any payment made under this Clause 2 shall have PAYE tax and
national insurance contributions deducted at source."
and by the consequential renumbering of Clauses 2.3 and 2.4 as Clauses 2.5
and 2.6 respectively.
Bonus Arrangements
3. By the deletion of the existing Clause 6.3 and its replacement by the
following new Clause 6.3:
"6.3 The Appointee may in respect of any financial year of the Company
be paid a performance-related bonus in addition to the salary
referred to in Clause 6.1 if the Board in its absolute discretion
so determines in respect of that year. Any such bonus shall be
payable to the Appointee only if the Appointment continues for the
whole of the financial year in question. For the avoidance of doubt
the parties expressly agree that the Appointee has no contractual
entitlement to participate in or to continue to participate in or
to receive a payment from any particular bonus scheme whether or
not expressed to apply to employees at the same or similar level of
employment as the Appointee and/or performing the same or similar
duties and payment of a bonus in any one or more years shall not
create any entitlement for the Appointee to be paid any bonus in
any subsequent years notwithstanding the payment of a bonus in any
subsequent years to any other employees
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6 December 1994
X X Xxxxxx Esq
whatsoever under the same or any other bonus scheme. Where the
Appointee does participate in a bonus scheme he shall do so subject
to the foregoing and on the terms and conditions contained in the
Rules of such scheme, as amended from time to time. Copies of the
Rules of any such scheme in which the Appointee so participates
will be provided to him by the Company Secretary on request."
Health Insurance etc
4. By the deletion of Clause 7.3 and its replacement by the following new
Clause 7.3:
"7.3 The Company will maintain private health insurance for the
Appointee, the Appointee's spouse and the Appointee's children
under the age of 21 during the Appointment in accordance with the
terms of, and subject to the conditions and exclusions contained
in, the Company's private health insurance scheme (as replaced or
amended from time to time). The Company currently provides cover
under Band C of the PPP Premier Healthcare Scheme. Details of the
terms and conditions of the scheme operated by the Company at any
time may be obtained from the Company Secretary."
Termination
5. By the deletion of Clause 14.2(b) and its replacement by the following new
Clause 14.2 (b):
"(b) if the Company at any time terminates the Appointment in circumstances
when it is not entitled so to do under this Agreement, the provisions
of Clause 2.3 shall apply."
6. By the deletion of Clause 14.5 and the consequential renumbering of Clauses
14.6 and 14.7.
Incapacity
7. By the deletion of Clause 15.2 and its replacement by the following new
Clause 15.2:
"15.2 The Appointee will, subject to compliance with Clause 15.1 and
Clause 14, be entitled to payment of salary at the full basic rate
(less any social security benefit or any other benefit payable
under any disability, permanent health insurance scheme or similar
arrangement to which the Company contributes or which is maintained
by the Company for the benefit of the Appointee) during any periods
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6 December 1994
X X Xxxxxx Esq
of absence from work as a result of sickness or injury up to a
maximum of 12 consecutive months but the Appointee will not be
entitled to any payment of salary during any absence in excess of
12 months unless agreed by the Board."
If there are any points regarding the content of this letter which you wish to
discuss, please do not hesitate to contact the Company Secretary in the first
instance.
I would be grateful if you could sign the attached copy of this letter and
return it to me to confirm your agreement to these amendments.
Yours sincerely
A N R XXXX
Chairman
I confirm my agreement to the amendments as set out in Mr A N R Rudds letter to
me of 6 December 1994.
/s/ X X XXXXXX 10/1/1995
----------------------
X X Xxxxxx
DATED 29th July 1994
EAST MIDLANDS ELECTRICITY plc
- and -
XXXXXX X XXXXXX ESQ
-----------------------------
AGREEMENT
amending
A SERVICE AGREEMENT
DATED 17 FEBRUARY 1994
-----------------------------
THIS AGREEMENT is made the 29th day of July 1994
BETWEEN:
(1) EAST MIDLANDS ELECTRICITY plc whose registered office is at 000 Xxxxxxx
Xxxx, Xxxxxx, Xxxxxxxxxx XX0 0XX ("Company"); and
(2) XXXXXX XXXX XXXXXX of Xxxxxxxxxx, Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx
under Lyme, Staffordshire ST5 4DS ("Appointee")
AMENDING a Service Agreement dated 17 February 1994 between the Company and the
Appointee ("the Service Agreement").
WHEREBY IT IS AGREED as follows:
1. DEFINITIONS
Words and expressions used in this Agreement shall have the same meanings
as are ascribed to them in the Service Agreement.
2. APPOINTMENT
2.1 Clause 2.2 of the Service Agreement is hereby deleted.
2.2 The following new Clause 2.2. is hereby substituted therefor:
"2.2 The Appointment shall (subject to earlier termination as otherwise
provided in this Agreement) be for a period starting on or with
effect from the Commencement Date and continuing until terminated
by the Company giving to the Appointee not less than 24 months
written notice of termination at any time or by the Appointee
giving to the Company not less than 6 months written notice of
termination at any time
PROVIDED ALWAYS THAT the Appointee will be offered a Service
Agreement on terms no less favourable than those offered to the
other Executive Directors by no later than 31 December 1994 to the
extent, if any, that such terms are more favourable."
3. CONTINUITY OF AGREEMENTS
Save as amended by this Agreement, the Service Agreement shall
continue in full force and effect and this Agreement and the
Service Agreement shall be read and construed together.
IN WITNESS whereof this Agreement has been executed as a Deed the day and year
first before written.
EXECUTED as a Deed by )
the said XXXXXX XXXX XXXXXX) /s/ [ILLEGIBLE]
in the presence of )
DATED 17 February 1994
EAST MIDLANDS ELECTRICITY plc
- and -
XXXXXX X XXXXXX ESQ
-----------------
SERVICE AGREEMENT
-----------------
THIS AGREEMENT is made on the 17th day of February 1994
BETWEEN:
(1) EAST MIDLANDS ELECTRICITY plc (Company Number 2366923) whose registered
office is at 000 Xxxxxxx Xxxx Xxxxxx Xxxxxxxxxx XX0 0XX ("Company"); and
(2) XXXXXX XXXX XXXXXX of Xxxxxxxxxx, Xxxx Xxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx
under Lyme, Staffordshire ST5 4DS ("Appointee").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 The following definitions apply in this Agreement:
"Agreement"
This agreement including the Schedule to it.
"Appointment"
The appointment of the Appointee under Clause 2.1.
"Associated Company"
Any body corporate which is for the time being:
(a) a Subsidiary of the Company; or
(b) a Holding Company or a Subsidiary of a Holding Company of the Company;
or
(c) a body corporate of which any one or more of the Company and any
bodies corporate within sub-clauses (a) or (b) of this definition
beneficially own at least 20% in nominal value of any class of equity
share capital (within the meaning of Section 744 Companies Act 1985)
carrying the right to vote in all circumstances at general meetings.
"Board"
The board of directors of the Company as from time to time constituted.
1
"Car"
A motor car of an age and type considered appropriate by the Company for use by
the Appointee in the course of the Appointee's duties.
"Commencement Date"
1 February 1994
"the Date of Termination"
The date upon which the Appointment terminates whether as a result of the
Company's breach or for any other reason and whether such breach is repudiatory
or otherwise.
"Group"
The Company and all Associated Companies.
"Holding Company"
As defined in Section 736 Companies Xxx 0000.
"Normal Retirement Age"
The age of 63 or such other age over 63 but not exceeding 65 as the Board or the
Remuneration and Nomination Committee may specify in writing from time to time
during the Appointment.
"Remuneration and Nomination Committee"
The Committee of the Board bearing that name or, if there is no committee with
such name, such other committee as shall from time to time be delegated
responsibility by the Board for determining the emoluments of directors and
associate directors of the Company.
"Subsidiary"
As defined in Section 736 Companies Xxx 0000.
2
1.2 Any reference in this Agreement to any statute or statutory provision shall
(except in Clause 1.1 where it means that statute or statutory provision as
amended extended or re-enacted at the date of this Agreement) be construed as
including a reference to that statute or statutory provision as from time to
time amended extended or re-enacted whether before or after the date of this
Agreement and to all statutory instruments orders and regulations for the time
being made pursuant to it or deriving validity from it.
1.3 Except so far as the context otherwise requires words denoting the singular
include the plural and vice versa and words denoting any one gender include all
genders and words denoting persons include bodies corporate unincorporate
associations and partnerships as well as individuals.
1.4 Unless otherwise stated references to clauses and sub-clauses of and the
Schedule to this Agreement relate to the clauses and sub-clauses of and the
Schedule to this Agreement.
1.5 Clause headings do not affect the interpretation of this Agreement.
2. APPOINTMENT
2.1 The Company employs the Appointee as Finance Director upon the following
terms. The Company reserves the right to alter the Appointee's job title and/or
function consistent with his existing status.
2.2 The Appointment shall (subject to earlier termination as otherwise provided
in this Agreement) be for a period starting on or with effect from the
Commencement Date and continuing until 31 January 1996. The Appointee's
appointment hereunder will be reviewed by no later than 31 July 1994 and subject
to satisfactory performance will be extended to 31 July 1996 PROVIDED ALWAYS
THAT if the Appointee's appointment is so extended the Appointee will be offered
a contract on terms no less favourable than those offered to the other Executive
Directors by no later than 31 December 1994.
3
2.3 The Appointee's period of continuous employment with the Company shall be
deemed to have begun on 1 February 1994.
2.4 The Company shall have the right to make the services of the Appointee
available to Associated Companies and to third parties and the Appointee shall
co-operate fully and follow all lawful directions and instructions from such
Associated Companies and/or third parties consistent with his existing status.
3. DUTIES
The Appointee undertakes and agrees with the Company that the Appointee shall:
3.1 work such hours as are necessary or desirable for the successful performance
of the Appointee's duties without additional remuneration for any hours worked
outside normal business hours;
3.2 devote the whole of the Appointee's time during the hours of work stipulated
in Clause 3.1 to the duties of the Appointment;
3.3 use the Appointee's utmost endeavours to promote the business and interests
of the Company and its Associated Companies;
3.4 render the services of the Appointee in a professional and workmanlike
manner in willing co-operation with others;
3.5 diligently perform the duties and exercise the powers in relation to the
Company and its Associated Companies and third parties that are from time to
time assigned to or vested in the Appointee by or under the authority of the
Board consistent with his existing status either alone or jointly with any other
person appointed for such purpose by the Board;
3.6 obey all reasonable and lawful directions given to the Appointee by or under
the authority of the Board;
4
3.7 whenever required to do so by the Board give an account to the Board of all
matters relating to the Company or any Associated Company for which the
Appointee is responsible;
3.8 attend such courses of training or personal development as the Company may
require;
3.9 not during the Appointment except with the prior written consent of the
Board be directly or indirectly engaged or interested in any other business
whatsoever whether on the Appointee's own account or in partnership with any
other person or persons or as employee consultant agent or director of any other
person except that the Appointee may hold or be interested in listed investments
not representing more than 5% in nominal amount of the issued investment of
any class of any company which are listed on any recognised stock exchange
anywhere in the world.
4. OFFICES
4.1 The Appointee agrees that the Appointee shall if requested by the Company
become and remain a director of any Associated Company as the Board may from
time to time require. The Appointee will not voluntarily resign from any such
directorship without the prior written consent of the Board otherwise than by
reason of rotation if required by the Articles of Association of the Company or
relevant Associated Company nor do or refrain from doing anything that would
lead to the Appointee being prevented from holding the office of director.
4.2 The Appointee shall at the request of the Board at any time (whether during
or after the Appointment) resign without compensation any directorship or other
office held by the Appointee in any Associated Company and should the Appointee
fail to do so the Company is irrevocably authorised to appoint any person to
sign the appropriate resignation documents and take any other action necessary
for this purpose in the name and on behalf of the Appointee.
5
[LOGO] East Midlands
Electricity
From the Company Secretary and Solictor Our ref 000 Xxxxxxx Xxxx Xxxxxx
Your xxx Xxxxxxxxxx XX0 0XX
Tel (0l15) 000 0000 or
(0000) 000 0000
Fax (0000) 000 0000
Direct Dial (0000) 000 0000
Xx X X Xxxxxx
In accordance with Clause 6.2 of this Agreement the Remuneration and Nomination
Committee reviewed the salary payable under Clause 6.1 and approved an increase
of salary from (pound)158,000 per annum to (pound)161,200 per annum with effect
from 1 December 1994.
4.3 In the event of the Appointee being removed from office as a director of the
Company during the Appointment (on grounds insufficient to justify termination
of the Appointment) by any resolution of a general meeting of the Board or the
Company or not being re-elected after retiring by rotation pursuant to the
Articles of Association of the Company the Appointment shall automatically
terminate but the Appointee shall be entitled to damages for breach of this
Agreement unless at the time of such termination the Company was entitled to
terminate the Appointment under any provision of this Agreement.
5. PLACE OF WORK
5.1 The Appointee shall work at arid travel to such places in the UK or
elsewhere as the Board may from time to time determine for the purpose of the
Appointment.
5.2 Notwithstanding any other provisions of this Agreement, the Company may at
its sole discretion require the Appointee not to attend at the Company's
premises during the Appointment and may choose not to allocate any duties to the
Appointee.
6. SALARY
6.1 The Company shall pay to the Appointee during the continuance of the
Appointment a salary at the rate of (pound)158,000 per annum (or such higher
rate as may from time to time be agreed or determined by the Company and
notified in writing to the Appointee). The salary shall accrue from day to day
and shall be payable in arrear by equal monthly instalments on or before the
last working day of each month. The salary shall be inclusive of any fees to
which the Appointee may be or may become entitled as a director of the Company
or any Associated Company.
6.2 The salary referred to in Clause 6.1 shall be reviewed at least once a year
by the Remuneration and Nomination Committee.
6
6.3 The Appointee may in respect of any financial year of the Company be paid a
performance-related bonus in addition to the salary referred to in Clause 6. 1
if the Board in its absolute discretion so determines in respect of that year.
Any such bonus shall be payable to the Appointee only if the Appointment
continues for the whole of the financial year in question. For the avoidance of
doubt the parties expressly agree that the Appointee has no contractual
entitlement to participate in or to continue to participate in or to receive a
payment from any particular bonus scheme whether or not expressed to apply to
employees at the same or similar level of employment as the Appointee and/or
performing the same or similar duties and payment of a bonus in any one or more
years shall not create any entitlement for the Appointee to be paid any bonus in
any subsequent years notwithstanding the payment of a bonus in any subsequent
years to any other employees whatsoever under the same or any other bonus
scheme. Where the Appointee does participate in a bonus scheme he shall do so
subject to the foregoing and on the terms and conditions contained in the rules
of such scheme from time to time amended, a copy of which shall be supplied to
the Appointee.
6.4 The Appointee will if so invited by the Remuneration and Nomination
Committee in its absolute discretion be eligible to participate in the Company's
share option or other employee share schemes (if any) on the terms and
conditions contained in the Rules of such schemes from time to time, copies of
which are obtainable on application to the Secretary of the Company. The
Appointee hereby agrees and accepts that he shall have no contractual
entitlement to participate in or to continue to participate in any such scheme
and that the grant, variation or lapse of any option or other right pursuant to
such scheme or schemes or the variation or termination of such scheme or schemes
shall not constitute or give rise to any claim or right of action against the
Company under this Agreement in respect of such grant, lapse, variation or
termination.
6.5 The Appointee shall be reimbursed by the Company in respect of all hotel
travelling entertaining and other expenses reasonably and properly incurred by
the Appointee in carrying out the Appointee's duties under this Agreement and
vouched for in the manner required by the Board from time to time. Any credit
card supplied to the Appointee by the Company shall be used solely for expenses
incurred by the Appointee in the course of the Appointment.
7
7. PENSION AND OTHER BENEFITS
7. 1 The Appointee will be offered membership of the East Midlands Electricity
Pension Plan and will enter into a Deed with the Company covering the
Appointee's unfunded unapproved pension benefits. The details of such
arrangements are set out in a letter to the Appointee from the Chairman of the
Company dated 25 January 1994, a copy of which is attached to this Service
Agreement as Appendix I.
7.2 A contracting out certificate is in force in respect of the employment of
the Appointee.
7.3 The Company will maintain private health and permanent sickness insurance
for the Appointee, the Appointee's spouse and dependent children during the
Appointment in accordance with the Company's scheme (as varied from time to
time) details of which are available from the Company Secretary.
7.4 The Company shall provide the Appointee with life assurance during the
Appointment in accordance with the Company's scheme (as varied from time to
time) details of which are available from the Company Secretary.
8. HOLIDAYS
8.1 The Appointee shall be entitled in addition to public holidays to take 30
working days holiday in each holiday year at such times as may be approved by
the Board. For the purposes of the Appointment the holiday year shall start on 1
April each year and run to the next following 31 March.
8.2 The Appointee may not without the prior written consent of the Board carry
forward any unused part of the Appointee's holiday entitlement to a subsequent
holiday year. No payment will be made by the Company during the continuance of
the Appointment in lieu of holidays not taken unless the Board at its absolute
discretion decides otherwise.
8
EAST MIDLANDS ELECTRICITY plc
MANAGEMENT CAR SCHEME - LEVEL 1
MAKE AND MODEL
BMW 740i V8 Saloon 4 door
Mercedes Benz S320 Saloon 4 door (5spd)
Jaguar Daimler 1.0 Saloon 4 door
1 May 1994
8.3 On the cessation of the Appointment for any reason the Appointee shall be
entitled to a payment in lieu of holiday on a pro rata basis for any holiday not
taken which has accrued in the holiday year including the Date of Termination
or, if appropriate, the Appointee shall repay to the Company any salary received
in respect of holiday taken prior to the Date of Termination in excess of the
Appointee's pro rata entitlement in that year.
9. CAR
9.1 During the Appointment the Company shall so long as the Appointee is legally
entitled to drive provide the Appointee with a Car for use by the Appointee in
the course of the Appointee's duties.
9.2 The Company shall pay the running expenses maintenance costs and outgoings
in respect of the Car in accordance with the Company's policy from time to time
with regard to the provision of Cars for executives.
9.3 The Appointee shall ensure that the Car is at all times in the state and
condition required by law and that it is properly serviced and maintained and
that if so required a current test certificate is in force in respect of it.
9.4 The Appointee shall observe and comply with all laws applicable to the use
and ownership of the Car.
9.5 The Car shall at all times remain the property of the Company but the
Appointee and his spouse and adult children over 18 years shall be allowed
private use of the car provided that the Appointee shall be responsible for
ensuring that such private use does not invalidate any licence or insurance
relating to the Car.
9.6 The Appointee shall not permit the Car to be taken out of the United Kingdom
without the prior written consent of the Board.
9.7 On termination of the Appointment for any reason the Appointee shall
immediately return the car in good condition to the Company together with the
keys and all registration documents.
9
10. SHARE DEALINGS
The Appointee undertakes that:
10.1 the Appointee shall not deal or become or cease to be interested in any
securities of the Company or any Associated Company (namely shares or debentures
(whether or not secured) or warrants or options to subscribe for any shares or
debentures) unless prior notice of such proposed dealings has been given to the
Chairman of the Company or other director(s) appointed for this specific purpose
and a written acknowledgement of such notice is received;
10.2 during the periods of two months immediately preceding the announcement of
the half yearly and annual results of the Company or any Associated Company
together with dividends and distributions to be paid or passed or, if longer,
during the periods from the last day of the trading period to which such results
relate until the date of such announcement the Appointee shall not purchase any
such securities of the Company or any Associated Company nor will the Appointee
sell any such securities unless the circumstances are exceptional provided in
any event that the provisions of Clause 10.1 above are complied with and the
acknowledgement referred to in Clause 10.1 has been obtained;
10.3 the Appointee shall comply with all rules of law relating to dealings by
directors in securities and shall use best endeavours to prevent any dealings by
the Appointee's spouse and dealings on behalf of any infant child and any other
dealings in which for the purposes of the Companies Xxx 0000 the Appointee is or
is to be treated as interested at a time when the Appointee is not free to deal
on the basis that Clauses 10.1 and 10.2 are to be regarded as equally applicable
to any dealings by the Appointee's spouse and dealings on behalf of any infant
child and any other dealings in which for the purposes of the Companies Xxx 0000
the Appointee is or is to be treated as interested;
10
10.4 so long as the Company or any Associated Company is a listed company the
Appointee shall observe and comply at all times with the Model Code for
Securities Transactions by Directors of Listed Companies issued from time to
time by the International Stock Exchange of the United Kingdom and the Republic
of Ireland Limited.
11. INVENTIONS
If at any time during the continuance of the Appointment the Appointee whether
alone or with any other employee of the Company or any Associated Company makes
discovers or conceives any invention process technique design or development
relating to or capable in the opinion of the Board of use or adaptation for use
in connection with any activity of the Company or any Associated Company:
11.1 the same shall be the absolute property of the Company; and
11.2 the Appointee will immediately give full information to the Company as to
such invention process technique design or development and the exact mode of
working producing using and exploiting the same and also all such explanations
and instructions to the Company as may be necessary or useful to enable the
Company to obtain the full benefit of them and will at the expense of the
Company furnish it with all necessary plans drawings formulae and models
applicable to the same and shall at the cost and expense of the Company execute
all documents and do all acts and things necessary to enable the Company or its
nominees to apply for and obtain protection for such inventions processes
techniques designs or developments throughout the world and for vesting the
ownership of them in the Company or its nominee provided always that this clause
shall take effect subject to any statutory rights of the Appointee. The
Appointee irrevocably appoints the Company to be his attorney in his name and on
his behalf to execute all documents and do all things necessary and generally to
use his name for the purpose of giving to the Company (or its nominee) the full
benefit of the provisions of this Clause and in favour of any third party a
certificate in writing signed by any director or the secretary of the Company
that any instrument or act falls within the authority conferred by this Clause
shall be conclusive evidence that such is the case.
11
12. CONFIDENTIAL INFORMATION
12.1 The Appointee shall not during or at any time after the Appointment
(except as authorised by the Board or required by the Appointee's duties as
Appointee or by law) disclose to any person or use for the Appointee's own
benefit or for the benefit of any other person or to the detriment or possible
detriment of the Company or any Associated Company any information or material
coming to the knowledge of the Appointee in the course of the Appointment
belonging to or concerning the Company or any Associated Company or any of its
or their customers or suppliers which the Company or any Associated Company is
obliged to hold confidential or which the Appointee knows or ought reasonably to
know to be confidential.
12.2 On the termination for any reason of the Appointment or the earlier request
of the Company the Appointee shall immediately return to the Company all minutes
records lists files papers books agreements discs tapes designs drawings and
other documents and data of the Company or of any of its Associated Companies
then in the Appointee's possession or under the Appointee's control together
with any and all notes and memoranda relating to the business of the Company or
any of its Associated Companies made or received by the Appointee during the
course of the Appointment. The Appointee shall not retain copies of any of the
foregoing.
13. GRIEVANCE PROCEDURE
13.1 The Appointee shall observe the disciplinary rules from time to time laid
down by the Board for employees generally so far as consistent with the status
of the Appointee.
13.2 If the Appointee has any concern or grievance relating to the Appointment
he should discuss this with the Chairman of the Company.
12
14. TERMINATION
14. 1 The Company may without prejudice to any remedy which it may have against
the Appointee for breach or non-performance of any of the provisions of this
Agreement at any time determine the Appointment by summary notice in writing if
the Appointee:
(a) commits any serious breach or repeats or continues (after warning) any
breach of any of the terms of this Agreement or is guilty of any
serious neglect in the discharge of the Appointee's duties under this
Agreement; or
(b) is guilty whether or not in the course of the Appointee's employment
of gross misconduct or other conduct tending to or likely to bring the
Appointee or the Company or any Associated Company into disrepute or
otherwise to affect prejudicially the interests of the Company or any
Associated Company; or
(c) has an interim order made under the Insolvency Xxx 0000 in respect of
the Appointee or becomes bankrupt or makes any composition or enters
into any deed of arrangement with the Appointee's creditors; or
(d) becomes a patient as defined by the Mental Health Xxx 0000; or
(e) is or becomes prevented by law from holding the office of director; or
(f) without the prior consent of the Board resigns from being a director
of the Company or any Associated Company (if so appointed) otherwise
than by reason of rotation if required by the Articles of Association
of the relevant company.
14.2 Notwithstanding any other provision of this Agreement:
(a) it is a condition of the Appointment that the Apointee retires on the
day on which the Appointee attains the Normal Retirement Age;
13
(b) the Company may at any time determine the Appointment for no cause by
giving summary notice in writing to the Appointee and the Appointment
shall then immediately terminate but in that event the Appointee shall
be entitled to damages for breach of this Agreement.
14.3 If the Appointee is incapacitated by ill health or otherwise from carrying
out his duties under this Agreement for a continuous period of 180 days or for
an aggregate of 150 working days in any twelve consecutive months, the Company
will be entitled to terminate his employment by not less than 6 months' written
notice given within 3 months after the end of the 180 or (as the case may be)
150 working days.
14.4 Without prejudice to any other provision of this Agreement, the Company may
suspend the Appointee on full pay at any time for up to four weeks where the
Board wishes to consider whether an event specified under Clause 14.1 has taken
place.
[DELETED] 14.5 On termination of the Appointment (for whatever reason) the
Company may without obligation and in its absolute discretion make payment to
the Appointee in lieu of notice. Any such payment will have PAYE tax and
national insurance contributions deducted at source.
14.6 On termination of the Appointment (for whatever reason) the Appointee shall
immediately deliver to the Company all credit cards and other property of the
Company or any Associated Company which may then be in the Appointee's
possession or under the Appointee's control (together with the documents
referred to in Clause 12.2 and the Car and associated articles referred to in
Clause 9.7).
14.7 On the termination of the Appointment for whatever reason and whether or
not the Company shall have been in breach of this Agreement, whether repudiatory
or otherwise, the Appointee will promptly resign (if he has not already done so)
from all offices held by him in the Company and its Associated Companies.
14
15. INCAPACITY
15.1 If the Appointee cannot because of ill-health or accident or other cause
perform the Appointee's duties under this Agreement the Appointee shall as soon
as possible (and in any event within 24 hours of commencement of the incapacity)
notify or ensure that the Company is notified of the fact and nature of the
incapacity and so long as the incapacity continues shall keep the Company
informed of the reason for the Appointee's continued absence and its expected
duration and shall produce medical certificates to the Company as often as the
Company reasonably requires.
15.2 The Appointee will, subject to compliance with Clause 15.1 and to Clause
14, be entitled to:
(a) payment of his salary at the full basic rate (less any social security
or other benefits payable to him including benefits payable under any
disability or permanent health insurance scheme maintained by the
Company for the benefit of the Appointee) during any periods of
absence from work as a result of sickness or injury up to a maximum of
six months in aggregate in any twelve consecutive months;
(b) payment of salary at half the full basic rate (less social security or
other benefits payable to him as aforesaid) during any such periods of
absence in excess of six months in aggregate in any twelve consecutive
months;
but he will not be entitled to any payment of salary during any absence in
excess of twelve months unless agreed by the Board.
15.3 The Company will pay statutory sick pay, where appropriate, in accordance
with the legislation in force at the time of absence, and any payment of salary
in accordance with this Clause will go towards discharging its liability to pay
statutory sick pay.
15
15.4 In order to assist the Company to make a judgement regarding the
Appointee's capacity for work the Appointee shall if and whenever reasonably
requested by the Company at the Company's expense undergo a medical examination
by a doctor nominated by the Company.
16. TERMINATION BY RECONSTRUCTION
If the Company wishes to terminate the Appointment or the Appointment is
terminated in anticipation or by reason of an internal or external
reorganisation reconstruction or amalgamation (whether or not involving the
winding up of the Company) and the Appointee is offered employment with any
Associated Company or with any company resulting from the reorganisation
reconstruction or amalgamation on terms no less favourable than the terms of
this Agreement the Appointee will have no claim against the Company in respect
of or in connection with the termination of the Appointment.
17. POST TERMINATION
17.1 The Appointee undertakes to the Company that the Appointee shall not during
the period of 12 months from the Date of Termination be directly or indirectly
interested or concerned (whether as shareholder director employee partner
consultant proprietor agent or in any other capacity) in any business firm or
company which
(a) holds a public electricity supply licence for the supply of
electricity anywhere within the United Kingdom; or
(b) carries on anywhere within the United Kingdom any other business
competing with any business carried on by the Company at the Date of
Termination in which the Appointee has been engaged or interested
during the 12 months prior to the Date of Termination ("other relevant
business")
16
but nothing in this Clause 17.1 shall prevent the Appointee holding or being
interested in listed securities not representing more than 5% in nominal amount
of the issued securities of any class of any company which are listed on any
recognised stock exchange anywhere in the world.
17.2 The Appointee undertakes to the Company that the Appointee shall not during
the period of 12 months from the Date of Termination whether as principal agent
or employee and whether directly or indirectly supply to any person firm or
company whom the Appointee dealt with as a customer or potential customer of the
Company in the last 12 months of the Appointment either electricity or any goods
or services which are the same or substantially the same as the type of goods or
services provided by any other relevant business of the Company at the date of
termination of the Appointment whether or not the Appointee has approached the
customer or vice versa.
17.3 The Appointee undertakes to the Company that the Appointee shall not during
the period of 12 months from the Date of Termination whether as principal agent
or employee and whether directly or indirectly approach any person firm or
company whom the Appointee dealt with as a customer or potential customer of the
Company in the last 12 months of the Appointment with an offer to supply them
with electricity or any goods or services which are the same or substantially
the same as the type of goods or services provided by any other relevant
business of the Company at the date of termination of the Appointment.
17.4 The Appointee undertakes to the Company that the Appointee shall not during
the period of 12 months from the Date of Termination whether as principal agent
or employer and whether directly or indirectly recruit or try to recruit any
person as an employee or consultant or in some other capacity if that person was
at any time during the last 12 months of the Appointment employed by the Company
as a director or senior employee and the Appointee had regular contact with such
person through that person's work for the Company.
17
17.5 The Appointee undertakes to the Company that the Appointee shall also
perform and observe the undertakings set out in Clauses 17.1 to 17.4 in relation
to any Associated Company whose business or affairs the Appointee has been
engaged or interested in at any time during the last 12 months of the
Appointment as if a reference to each such Associated Company was substituted
for a reference to the Company in each case. This undertaking shall be construed
and enforceable as a separate covenant in relation to each Associated Company
and the Company shall be deemed to have the benefit of this covenant as trustee
for any Associated Company.
17.6 It is agreed that each of the covenants contained on the part of the
Appointee in each of Clauses 17.1 to 17.5 inclusive is and shall be construed
and enforceable as a separate covenant.
17.7 In this Clause references to acting directly or indirectly include (without
prejudice to the generality of that expression) references to acting alone or
jointly with or through any other person.
17.8 The Appointee undertakes and covenants with the Company that he shall not
at any time after the termination of the Appointment hold himself out or permit
himself to be held out as being in any way interested in or connected with the
Company or any Associated Company and shall use his best endeavours to prevent
himself being so held out, save that if and for so long as he remains a
director or an employee of an Associated Company he may hold himself out or be
held out as being so connected with that company.
18. PREVIOUS OR OTHER AGREEMENTS
18.1 This Agreement shall operate from the Commencement Date in substitution for
any terms of service previously in force (whether written or oral) between the
Appointee and the Company but without prejudice to any rights or obligations of
either party which may have accrued prior to that date. Any remuneration paid or
payable to the Appointee under such terms of service in respect of any period
subsequent to the Commencement Date shall be set off against any amounts which
would otherwise be payable to the Appointee under this Agreement in respect of
the same period.
18
18.2 The Appointee shall if so requested by the Company enter into a separate
agreement or undertaking directly with any Associated Company in terms of any
agreement or undertaking by the Appointee in this Agreement relating to
Associated Companies.
19. CONTINUING PROVISIONS
The expiry or termination of the Appointment (however arising and
notwithstanding that the termination may be held to be illegal or improper)
shall not terminate any of the provisions of this Agreement which expressly or
impliedly operate or have effect after expiry or termination of the Appointment.
20. NOTICE
20.1 Any notice or other document required to be given under this Agreement or
any communication between the parties with respect to any of the provisions of
this Agreement shall be in writing in English and be deemed duly given if left
at or sent by pre-paid first class post in accordance with the provisions of
this Clause.
20.2 Any such notice or other communication shall be deemed to be given to and
received by the addressee:
(a) if delivered personally, at the time the same is left at the address
of or handed to a representative of the party to be served;
(b) if despatched by post, on the next business day occurring two days
after date of posting.
20.3 In proving the giving of a notice it should be sufficient to prove that the
notice was left or that the envelope containing the notice was properly
addressed and posted as the case may be to the address of the party receiving
notice as set out at the head of this Agreement or such other address as may
from time to time be disclosed to the other party.
19
21. CONSENTS AND DETERMINATIONS
Wherever this Agreement refers to the consent or determination of the Company,
this means the consent or determination of any person appointed by the Company
for the specific purpose or failing such appointment the Board and any consent
or determination to be given or made by the Board under this Agreement may be
made by any committee of the Board duly appointed by the Board and acting within
the scope of its delegated authority from the Board and shall be as valid as
consent or determination of the Board.
22. WAIVER
No failure or delay on the part of any party to this Agreement relating to the
exercise of any right power privilege or remedy provided under this Agreement
shall operate as a waiver of such right power privilege or remedy or as a waiver
of any preceding or succeeding breach by any other party to this Agreement nor
shall any single or partial exercise of any right power privilege or remedy
preclude any other or further exercise of such or any other right power
privilege or remedy provided in this Agreement all of which are several and
cumulative and are not exclusive of each other or of any other rights or
remedies otherwise available to a party at law or in equity.
23. SEVERABILITY
If any provision of this Agreement is or becomes unlawful void or unenforceable
in any respect under the law of any jurisdiction such provision shall to the
extent required be severed from this Agreement and rendered ineffective as far
as possible for the purposes of construing performing or enforcing this
Agreement pursuant to the laws of such jurisdiction without prejudice to the
validity or enforcement of such provision pursuant to the laws of any other
jurisdiction and without modifying the remaining provisions of this Agreement or
in any way affecting any other circumstances or the validity or enforceability
of this Agreement pursuant to the laws of such jurisdiction.
20
24. LAW
This Agreement shall be governed by and construed and interpreted in accordance
with the laws of England whose courts shall be courts of competent jurisdiction.
21
IN WITNESS whereof this deed has been duly executed and is intended to be
delivered on the day and year first before written.
SIGNED AND DELIVERED AS A )
DEED by XXXXXX XXXX XXXXXX ) /S/ XXXXXX XXXX XXXXXX
in the presence of: )
Witness' Signature /S/ XXXX XXXXXXXX
Name XXXX XXXXXXXX
Address 000 XXXXXXX XXXX
XXXXXXXXXX
Occupation Solicitor
22
[LOGO] East Midlands
Electricity
APPENDIX 1
Xx X X Xxxxxx
Netherwood
Shut Lane Head I
Butterton
Newcastle under Lyme
Staffordshire
ST5 4D5
25 January 1994
Dear Xx. Xxxxxx,
Retirement and Death Benefits
I am now writing, further to my letter of 21 January, to sumniarise our
proposals regarding retirement and death benefits to be provided to you and/or
your dependants in respect or your period of employment with the Company.
Your benefits will be provided from two sources:
(i) From the East Midlands Electricity Pension Plan - benefits as set out in
the attached letter dated 25 January 1994 based on the maximum benefits
permitted by the Inland Revenue from an approved pension scheme.
(ii) Directly by the Company on an unfunded unapproved basis in accordance with
a Deed to be completed in due course.
Contributions
Your contributions to the East Midlands Electricity Pension Plan will amount to
5% of the earnings "cap" imposed by the Finance Xxx 0000, which is (pound)76,800
for tax year 1994/95. This figure normally increases each year in line with the
annual rise in the retail prices Index.
You are not required to pay any contributions towards your unfunded unapproved
benefits.
Your Pension Benefits from Previous Employments
Any benefits arising from previous employments are in addition to the provisions
set out in this letter.
-2-
Your East Midlands Electricity Benefits
The following benefits are the total benefits to be provided by East Midlands
Electricity plc. The amount of each benefit to be provided directly by the
Company from the unfunded unapproved arrangement is the part thereof not
provided from the East Midlands Electricity Pension Plan.
(1) Retirement at your Normal Retirement Age (63)
Your pension entitlement will amount to 50% of your Final Pensionable
Earnings* at retirement.
* Final Pensionable Earnings is as defined in the Rules of the East
Midlands Electricity Plan without the limitation of the earnings
"cap". In most circumstances it will be your basic salary received
over the 12 months before you retire.
(2) Early Retirement
If the Company agrees, you may retire early at any time after your 50th
birthday, with an immediate pension entitlement amounting to (*):
N x 50% of your Final Pensionable Earnings at
-- retirement
NS
where
N is the number of years of your employment with the Company, and
NS is the number of years of your total potential employment with the
Company to your 63rd birthday
(*) If you retire before your 55th birthday, your pension will be reduced
by 4% for each year by which your retirement precedes that date, unless
you are retiring at the request of the Company.
(3) Death in Service
In the event of your death in service before your Normal Retirement Age,
the following benefits would be paid:
-3-
(a) a widow's pension equal to 60% of your own prospective pension
entitlement at your Normal Retirement Age.
(b) Pensions to your dependent children aged under 18 or, subject to
Company discretion, under 25 if in full--time education amounting to:
20% of the widow's pension for each child up to a maximum of three
children
- the amount is doubled if no widow's pension is payable.
(c) a lump sum death benefit of 3 times basic annual salary at date of
death; increased to 4 times basic annual salary if no dependants'
pensions are payable.
(4) Death after Retirement
The following benefits would be payable on your death after retirement:
(a) A widow's pension of 60% of your full pension entitlement, including
any part exchanged for cash at retirement.
(b) Children's pensions as on death in service
(c) If you die during the first five years of your retirement, a lump sum
is payable equal to the outstanding pension payments during the
initial five year period based on your rate of pension at your date of
death.
(5) Leaving Service
Should you leave service without becoming entitled to an immediate pension,
you would be granted a deferred pension payable from your Normal Retirement
Age equal to:
N x 50% of your Final pensionable Earnings at
-- date of leaving
NS
where N and NS are as in (2) above.
This would be subject to revaluation between your date of leaving and your
Normal Retirement Age in line with the cumulative increase in the RPI,
subject to a maximum of 5% per annum compound.
-4-
This proposal is made following a detailed examination of your pension position
by our advisers and I very much hope that it meets with your acceptance.
I look forward to hearing from you.
Yours sincerely
/s/ XXXX X XXXXXX
Xxxx X Xxxxxx
JFH/JN
