Dated 2 July 1997
XXXXX HOLDINGS LIMITED
(TO BE RENAMED XXXXX HOLDINGS PLC)
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XXXX XXXXX XXXXXXXXX
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EXECUTIVE SERVICE AGREEMENT
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ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 0000-000 0000
Fax: 0000-000 0000
MAW/MGC/X00000000
THIS AGREEMENT is made on 2 July 1997
BETWEEN:-
(1) XXXXX HOLDINGS LIMITED (to be renamed Xxxxx Holdings PLC) (No. N17005)
whose registered office is at Xxxxxx Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, X.
Xxxxxxx XX00 0XX (the "Company"); and
(2) XXXX XXXXX XXXXXXXXX of 76 Xxxxxx Road, Straid, Ballyclare, County Antrim
(the "Executive").
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
In this agreement unless the context otherwise requires:-
1.1 "Board" means the board of directors of the Company;
1.2 "Group Companies" means the Company and all subsidiary and associated
companies of the Company;
1.3 "associated company" means a company which falls to be so treated as such
for the purposes of Statement of Standard Accounting Practice No. 1 of the
Institute of Chartered Accountants in England & Wales;
1.4 "subsidiary" has the meaning given to it in Article 4 of the Companies
(Northern Ireland) Order 1986;
1.5 "Listing" means the admission of the whole of the share capital, issued and
to be issued, of the Company to the Official List of the London Stock
Exchange Limited.
2. TERM AND APPOINTMENT
2.1 Subject to completion of Listing by 31st August 1997 (the "Condition") the
Company shall engage the Executive and the Executive shall serve the
Company as hereinafter provided (the "Appointment"). The Appointment shall
commence on the date of Listing and shall continue subject as hereinafter
mentioned unless and until terminated by either party giving to the other
not less than 12 months' previous notice in but not in any event so as to
extend beyond the Executive's 60th birthday.
2.2 Where notice is served to terminate the Appointment whether by the Company
or the Executive, the Company shall be entitled to terminate the
Appointment forthwith and in full and final satisfaction of the Executive's
claims under this agreement by paying to the Executive a payment in lieu of
notice, which shall be calculated with regard to the unexpired period of
notice.
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2.3 In the event that the Condition is not satisfied this Agreement shall
immediately lapse and be of no effect.
3. DUTIES
3.1 During the Appointment the Executive shall devote such time as is
necessary to perform the duties assigned to him and shall well and
faithfully serve the Company and use his best endeavours to promote the
interests of the Company and shall obey all reasonable and lawful
directions given to him by or under the authority of the Board and subject
thereto the Executive shall perform the duties of Chief Operating Officer.
3.2 The Executive may be required in pursuance of his duties hereunder:-
(a) to perform services not only for the Company but also for any of the
Group Companies and without further remuneration (except as otherwise
agreed) to accept such offices in any of the Group Companies as the
Company may from time to time reasonably require and if the Executive
shall cease to be a director for any reason then he may (at the will
of the Company) continue as an employee only;
(b) to work at such places within Northern Ireland as the Company may
require and with the Executive's consent elsewhere in the United
Kingdom as the Company may reasonably require, the Company reimbursing
the Executive in respect of all reasonable relocation expenses;
(c) to travel to such places whether in or outside the United Kingdom by
such means and on such occasions as the Company may from time to time
reasonably require;
(d) to make reports to the Board and/or the Board of its holding company
on any matters concerning the affairs of the Company or any other
Group Company as it or they may reasonably require.
3.3 Notwithstanding the foregoing or any other provision of this agreement the
Company shall not be under any obligation to vest in or assign to the
Executive any powers or duties and may at any time require the Executive
to perform:-
(a) all his normal duties;
(b) a part only of his normal duties and no other duties;
(c) such duties as it may reasonably require and no others;
(d) no duties whatever;
and may from time to time suspend or exclude the Executive from the
performance of his duties and/or from all or any premises of the Company
for the period of six months in total at any one time without the need to
give any reason for so doing but his salary will not cease to be payable
(in whole or in part) nor will he cease to be entitled to any other
benefits hereunder by reason only of such requirement as mentioned in
paragraphs 3.3(b) to 3.3(d) of this clause or such suspension or exclusion
(unless or until his employment under this agreement shall be
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terminated). During any such suspension or exclusion, if the Company so
requests the Executive shall be obliged to resign as a director of the
Company with immediate effect.
4. HOLIDAY ENTITLEMENT
During the Appointment the Executive shall be entitled to 25 working days'
holiday (in addition to public holidays) in each calendar year January to
December at full salary to be taken at such time or times as may be
approved by the Board. Holidays not taken cannot be carried over to a
subsequent year. Upon the determination of the Appointment either the
Executive shall be entitled to receive payment in lieu of accrued holidays
not taken at that date (provided that such determination is not pursuant to
clause 12) or the Company shall be entitled to make a deduction from the
Executive's remuneration in respect of holidays taken in excess of the
accrued entitlement. The accrued holiday entitlement at the date of
determination shall be calculated on the basis of 2 days' holiday for each
completed calendar month of service in the then current calendar year and
the amount of the payment in lieu or deduction shall be calculated on the
basis of 1/260 of the Executive's annual salary for each day's holiday not
taken or taken in excess of the accrued entitlement.
5. DISCLOSURE OF INTERESTS
5.1 Except as a representative of the Company or with the previous approval of
the Board (such approval not to be unreasonably withheld or delayed) the
Executive shall not during the Appointment whether directly or indirectly
paid or unpaid be engaged or concerned in the conduct of any other actual
or prospective business or profession or be or become an employee, agent,
partner, consultant or director of any other company or firm or assist or
have any financial interest in any other such business or profession.
5.2 The Executive shall be permitted to hold shares or securities of a company
any of whose shares or securities are quoted or dealt in on any recognized
investment exchange provided that:-
(a) any such holding shall not exceed three per cent. of the issued share
capital of the company concerned and is held by way of bona fide
investment only ("INVESTMENT"); and
(b) the Executive complies with the Model Code for Securities Transactions
by Directors of listed companies issued from time to time by The Stock
Exchange and any other regulations applicable to the Executive details
of which are available from the Company Secretary.
5.3 The Executive shall disclose to the Board any matters relating to his
spouse (or anyone living as such), their children, step children, parents
or any trust or firm whose affairs or actions he controls which, if they
applied to the Executive, would contravene clause 5.1, to the extent that
the Executive has actual knowledge of such matters.
5.4 Subject to clause 3.1 those business activities of the Executive set out in
the Schedule 7 declaration to the London Stock Exchange, together with the
supplementary declarations thereto shall not constitute a break of this
Clause 5 or of Clause 12 hereof.
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6. REMUNERATION
6.1 During the Appointment, as remuneration for his services hereunder, the
Executive shall be paid a fixed salary at the rate of (Pound) 75,000 per
annum such salary to be subject to annual review by the Remuneration
Committee of the Board. Such salary shall be inclusive of any fees or
remuneration which he would otherwise be entitled to receive from the
Company or any associated company and shall be payable by bank credit
transfer in equal monthly instalments in arrears on or before the last
working day of each calendar month.
6.2 In addition to the said salary a bonus shall be paid to the Executive at
the absolute discretion of the Board (who may suspend or discontinue such
payments at any time in the interests of the Company whether generally or
in relation to the Executive) provided that the Board may be free at any
time to vote to the Executive such additional benefit or remuneration as it
thinks fit by way of bonus or otherwise without the same being deemed
thereby for any purpose to become part of the contractual remuneration or
fixed salary hereunder.
7. EXPENSES
The Executive shall be entitled to be repaid all reasonable travelling
hotel and other expenses properly authorised by the Board and incurred in
or about the performance of the duties hereunder, which expenses shall be
evidenced in such manner as the Company may specify from time to time.
8. COMPANY CAR
To assist in the performance of the duties hereunder the Company shall
during the Appointment provide the Executive with a car of a cost and type
to be determined from time to time by the Board and subject to any terms
and conditions which the Company may from time to time reasonably impose on
the Executive in relation thereto (whether permitting limiting excluding or
imposing a charge upon the private use thereof or requiring a contribution
to the costs thereof). Subject thereto the Company shall bear the cost of
insuring testing taxing repairing and maintaining the same and shall
reimburse to the Executive all reasonable running expenses of the car
properly incurred in connection with the performance of duties hereunder.
The Executive shall:-
8.1 take good care of the car and ensure that the provisions and conditions of
any policy of insurance relating thereto are observed;
8.2 not permit such car to be taken out of the United Kingdom or Republic of
Ireland without the written consent of the Company; and
8.3 return the car and its keys and all documents relating to it to the
Company's Registered Office immediately upon the termination of the
Appointment howsoever arising.
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9. BENEFITS
9.1 The Company shall make a contribution of 9 per cent of the Executive's
salary from time to time directly to the Xxxxx Limited Retirement Benefits
Scheme for the benefit of the Executive, or such other amount as may from
time to time be agreed with the Remuneration Committee of the Board.
9.2 The Executive shall be entitled to participate in the Company's permanent
health insurance and private health insurance schemes, subject to their
rules from time to time.
9.3 The Company shall pay the rental and call charges for the Executive's home
telephone.
10. CONFIDENTIAL INFORMATION
10.1 The Executive shall not use or divulge or communicate to any person other
than with proper authority any of the trade secrets or other confidential
information of or relating to the Company or any of the Group Companies
(including but not limited to details of customers, potential customers,
consultants, suppliers, potential suppliers, designs, product details,
future product details, prices, discounting arrangements, specific product
applications, existing trade arrangements, terms of business and those in
the course of negotiation, operating systems, pricing and fee structures,
financial information, inventions, research and development activities,
scientific formulae and manufacturing techniques and processes) which he
may have created developed received or obtained while in the service of
the Company or any of the Group Companies. This restriction shall continue
to apply after the termination of the Appointment howsoever arising
without limit in point of time including ideas information or knowledge
which may come into the public domain for so long as the Executive is in a
position to use such information more readily than others who have not
worked for the Company PROVIDED THAT nothing in this clause shall prevent
the Executive exercising his own skill and knowledge after the termination
of the Appointment.
10.2 The Executive shall not during the Appointment make otherwise than for the
benefit of the Company and as may be required for the proper performance
of his duties pursuant to the Appointment any records (whether recorded on
paper, computer memory or discs or otherwise) relating to any matter
within the scope of the business of the Company or any of the Group
Companies or concerning any of its or their dealings or affairs nor either
during the Appointment or thereafter use or permit to be used any such
records otherwise than for the benefit of the Company it being agreed by
the parties that all such records (and copies thereof) in the possession
or control of the Executive shall be the property of the Company and shall
be handed over by the Executive to the Company from time to time and on
demand and in any event upon the termination of the Appointment.
10.3 The Executive shall not during the Appointment speak in public or write
any article for publication on any matter connected with or relating to
the business of the Company or any of the Group Companies without first
obtaining the approval of the Board such approval not to be unreasonably
withheld or delayed.
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11. INVENTIONS AND CREATIVE WORKS
11.1 The Executive acknowledges that in the course of his employment and as
part of his duties he may conceive or make, individually or with others,
certain inventions, ideas, discoveries, developments, writings, designs,
drawings, improvements and innovations, whether or not patentable, or
capable of registration (collectively, "INVENTIONS"); and he may develop
or produce, individually or with others, certain works in which copyright
and/or unregistered design right will subsist in various media, including
but not limited to electronic materials (collectively, "CREATIVE WORKS"),
AND agrees that he will promptly disclose in writing to the Company all
Inventions and Creative Works.
11.2 "INTELLECTUAL PROPERTY" means patents, trade marks and service marks,
right in designs, trade or business names, copyrights (including rights in
computer software)(whether or not any of these is registered and including
applications for registration of any such thing) and all rights or forms
of protection of a similar nature or having equivalent or similar effect
to any of these which may subsist anywhere in the world.
11.3 The Executive acknowledges that any Inventions or Creative Works and any
and all Intellectual Property subsisting or which may in the future
subsist in such Inventions or Creative Works whether or not conceived or
made during working hours, including, without limitation, those which:
(a) relate in any manner to the business of the Company or any of the
Group Companies or to its or their actual or demonstrably anticipated
activities; or
(b) result from or are made in the course of the Executive's employment by
the Company; or
(c) involve the use of any equipment, supplies, facilities, confidential
information, documents, Intellectual Property or time of the Company
or any of the Group Companies.
will on creation vest in and be the exclusive property of the Company in
the United Kingdom or any other part of the world and where the same does
not automatically vest as aforesaid the Executive agrees at the Company's
request and expense to assign the same to the Company (or as it may
direct) or in the case of any future copyright in the same the Executive
hereby assigns such copyright to the Company.
11.4 The Executive agrees that, without limitation to the foregoing:
(a) any Invention disclosed by the Executive to a third person or
described in a patent or registered design application filed by the
Executive or on the Executive's behalf; and
(b) any Creative Work disclosed to a third person, published or the
subject of an application for copyright or other registration filed by
the Executive or on the Executive's behalf.
during or within six months following termination of the Appointment will
be presumed to have
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been written, developed, produced, conceived or made by the Executive
during the Appointment, unless proved by the Executive to have been
written, developed, produced, conceived or made by the Executive following
the termination of the Appointment.
11.5 The Executive hereby irrevocably waives any rights which he may have in the
Inventions or the Creative Works which are or have been conferred on him by
chapter IV of part I of the Copyright, Designs and Xxxxxxxx Xxx 0000 headed
"Moral Rights" and by any other laws of a similar or equivalent nature in
any of the countries of the world.
11.6 The Executive will also, at the Company's request and expense, execute
specific assignments of any Invention or Creative Work and execute,
acknowledge and deliver such other documents and take such further action
as the Company may require, at any time during a subsequent to the period
of the Appointment, to vest or evidence title in Inventions or Creative
Works in the Company (or as it may direct) and subject to the Executive
being indemnified against all reasonable costs and expenses to use his best
endeavours to obtain, maintain and defend the Intellectual Property in the
Inventions or Creative Works in any and all countries or to otherwise give
effect to the provisions of this agreement.
11.7 The Executive 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 or
its nominee the full benefit of the provisions of this clause 11 and
acknowledges in favour of any third party that a certificate in writing
signed by any Director or 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.
11.8 The Executive shall not knowingly do or permit to be done any act or
knowingly omit to do any thing which the Executive is aware (or ought
reasonably to be aware) might imperil, jeopardise or prejudice any of the
rights referred to in this clause 11 or which might invalidate or
prejudice any application made by the Company for a patent, registered
design, copyright, design right or other similar right in any part of the
world.
12. RESTRICTIONS AFTER TERMINATION
12.1 The Executive covenants to the Company (for itself and as trustee for each
of the Group Companies) that he shall not for the following periods after
the termination of the Appointment howsoever arising (but excluding
repudiatory breach of this agreement by the Company) save with the prior
written consent of the Board which shall not be unreasonably refused or
delayed directly or indirectly, either alone or jointly with or on behalf
of any person, firm, company or entity and whether on his own account or as
principal partner shareholder director employee consultant or in any other
capacity whatsoever:-
(a) for six months following termination in the Relevant Territory and in
competition with the Company or any of the Relevant Group Companies
engage, assist or be interested in any undertaking which provides
services/products similar to those provided by the Company or any of
the Relevant Group Companies in the 12 months prior to termination and
with which the Executive was concerned in the said period of 12 months;
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(b) for three months following termination in the Relevant Territory
solicit or interfere with or endeavour to entice away from the Company
or any of the Relevant Group Companies any person, firm, company or
entity who was a customer of the Company or any of the Relevant Group
Companies in the 12 months prior to termination and with whom the
Executive was concerned or had personal contact in the said period of
12 months;
(c) for six months following termination in the Relevant Territory be
concerned with the supply of services/products to any person, firm,
company or entity which was a customer of the Company or any of the
Relevant Group Companies in the 12 months prior to termination where
such services/products are in competition with those services/products
supplied by the Company or any of the Relevant Group Companies in the
said 12 month period, with which supply the Executive was concerned in
the said period of 12 months;
(d) for six months following termination offer to employ or engage or
solicit the employment or engagement of any person who immediately
prior to the date of termination was a member of the senior management
team of the Company or any of the Relevant Group Companies and with
whom the Executive worked in the 12 months prior to termination
(whether or not such person would commit any breach of their contract
of employment or engagement by reason of leaving the service of such
company); and
(e) represent himself as being in any way connected with or interested in
the business of the Company or any of the Relevant Group Companies
other than in his capacity as a shareholder of any such company.
12.2 Each of the obligations contained in this clause constitutes an entire
separate and independent restriction on the Executive, despite the fact
that they may be contained in the same phrase and if any part is found to
be unenforceable the remainder will to the extent legally permissible
remain valid and enforceable.
12.3 While the restrictions are considered by the parties to be fair and
reasonable in the circumstances, it is agreed that if any such
restrictions should be judged to be void or ineffective for any reason but
would be treated as valid and effective if part of the wording thereof
were deleted or the periods thereof reduced or the area thereof reduced in
scope, the said restrictions shall apply with such modifications as will
be necessary to make them valid and effective.
12.4 The Executive agrees that he will at the request and cost of the Company
enter into a direct agreement with any of the Group Companies under which
he will accept restrictions corresponding to the restrictions contained in
this clause (or such as will be appropriate in the circumstances) in
relation to such Group Company PROVIDED THAT any such direct agreement
will not impose any greater or more onerous restrictions on the Executive
than those contained in this agreement.
12.5 The provisions of this clause will not prevent the Executive from holding
an Investment.
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12.6 For the purposes of this clause:-
(a) a "Relevant Group Company" means any of the Group Companies for
which the Executive has performed services or in which he has
held office during the 12 months immediately preceding
termination and, if applicable, their predecessors in business
during such 12 month period; and
(b) "Relevant Territory" means the area constituting the market of
the Company or any of the Relevant Group Companies for products
and services with which the Executive shall have been concerned
in the period of 12 months prior to termination.
13. TERMINATION BY EVENTS OF DEFAULT
The employment of the Executive may be terminated at any time by the
Company by notice but with immediate effect and without liability for
compensation or damages:-
(a) if the Executive is guilty of any gross default of his
obligations hereunder or grave misconduct in connection with or
affecting the business of any Group Company; or
(b) in the event of any repeated breach or non-observance by the
Executive (after a warning in writing) of any of the stipulations
contained in this agreement; or
(c) if the Executive has an interim receiving order made against him,
becomes bankrupt or makes any composition or enters into any deed
of arrangements with his creditors; or
(d) if the Executive is convicted of any criminal offence punishable
by imprisonment (other than an offence under road traffic
legislation in the United Kingdom or elsewhere for which a fine
or non-custodial penalty is imposed); or
(e) if the Executive shall have committed any act of dishonesty or
gross misconduct or any conduct tending in the reasonable opinion
of the Board to bring the Company or any Group Company into
disrepute; or
(f) if the Executive becomes prohibited by law from holding the
office of director in any company; or
(g) if the Executive resigns as a director of the Company or any
Group Company otherwise than at the request of the Company.
14. INCAPACITY
If the Executive shall be incapacitated during the Appointment by
ill-health or accident from performing his duties hereunder for an
aggregate of 180 days or more in any period of 12 months the Company
may by written notice to the Executive forthwith (or as from a future
date specified in the notice) discontinue payment in whole or part of
the remuneration under clause 6 hereof until such incapacity shall
cease or (whether or not his remuneration shall have been discontinued
as aforesaid) determine the Appointment. Subject as aforesaid the said
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remuneration shall continue to be payable to the Executive under clause 6
notwithstanding such incapacity but the Company shall be entitled to set
off or deduct therefrom the amount of any sickness or other benefit to
which the Executive is entitled under Social Security legislation for the
time being in force.
15. OBLIGATIONS UPON TERMINATION
Under the termination of the Appointment howsoever arising the Executive
shall:-
15.1 at any time or from time to time thereafter upon the request of the
Company, resign without claim for compensation (save for any claim in
respect of a breach of the terms of this Agreement) from:-
(a) all offices held in the Company or any of the Group Companies; and
(b) membership of any organisation and any office in any other company
acquired by reason of or in connection with the Appointment;
and should he fail to do so the Company is hereby irrevocably appointed
to be the Executive's Attorney in his name and on his behalf to execute
any document and to do any things necessary or requisite to give effect
to this clause;
15.2 deliver to the Board all documents (including, but not limited to,
correspondence, lists of customers, notes, memoranda, plans, drawings and
other documents of whatsoever nature and all copies thereof) made or
compiled or acquired by the Executive during the Appointment and
concerning the business, finances or affairs of the Company or any of the
Group Companies or customers.
16. RECONSTRUCTION AND AMALGAMATION
If at any time the Executive's employment is terminated in connection
with any reconstruction or amalgamation of the Company or any of the
Group Companies whether by winding up or otherwise and the Executive
receives an offer on terms which are similar in all material respects to
the terms of this agreement from a company involved in or resulting from
such reconstruction or amalgamation the Executive shall have no claim
whatsoever against the Company or any such company arising out of or
connected with such termination.
17. NOTICES
Any notice to be given hereunder shall be in writing. Notices may be
given by either party by personal delivery or post or by fax addressed to
the other party at (in the case of the Company) its registered office for
the time being and (in the case of the Executive) his last known address
any such notice given by letter or fax shall be deemed to have been
served at the time at which the letter was delivered personally or
transmitted or if sent by post would be delivered in the ordinary course
of post.
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18. PREVIOUS CONTRACTS
This agreement is in substitution for any previous contract of service
between the Company or any of the Group Companies and the Executive which
shall be deemed to have been terminated by mutual consent as from the
commencement of the Appointment.
19. PROPER LAW
This agreement shall be governed and construed in all respects in
accordance with the laws of Northern Ireland and the parties submit to the
non-exclusive jurisdiction of the Courts of Northern Ireland in determining
matters arising under it.
20. CONSTRUCTION
20.1 The headings in this agreement are inserted for convenience only and shall
not affect its construction.
20.2 Any reference to a statutory provision shall be construed as a reference to
any statutory modification or re-enactment thereof (whether before or after
the date hereof) for the time being in force.
21. STATUTORY INFORMATION AND SCHEDULE 1
Schedule 1 hereto (in addition to this agreement) constitutes a written
statement as at the date hereof of the terms of employment of the Executive
in compliance with the provisions of the Employment Rights (Northern
Ireland) Order 1996; it does not form part of the contract of employment
and may be varied by the Company by notice in writing to the Executive of
any changes applicable to his employment.
IN WITNESS whereof this agreement has been executed as a deed on the date first
before written.
Signed as a deed by the said )
XXXX XXXXX XXXXXXXXX )
in the presence of:- ) /s/ Xxxx X. Xxxxxxxxx
-----------------------------
/s/ illegible signature
-----------------------------
Signed by )
duly authorised for and on behalf of )
XXXXX HOLDINGS LIMITED ) /s/ Xxxxx X. XxXxxx
in the presence of:- )-------------------------------
Director
/s/ illegible signature
-----------------------------
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SCHEDULE 1
1. The Executive has been continuously in the employment of the Company
(including reckonable service with any of the Group Companies) since
1978.
2. Rate of remuneration and the intervals at which it is paid are contained
in clause 6.
3. There are no specific terms and conditions relating to hours of work
except as provided in clause 3.1.
4. The terms and conditions relating to holidays are contained in clause 4
and those relating to sickness are contained in clause 14.
5. Particulars as to the length of notice to terminate are contained in
clause 2.
6. Particulars as to the work for which the Executive is employed are
contained in clause 3.
7. Subject to clause 3.2 the Executive's place of work at the date of this
Schedule is Craigavon.
8. There are no disciplinary rules applicable to the Executive except as
provided in this agreement and if the Executive is dissatisfied with any
disciplinary decision he should apply orally or in writing to the Board.
9. Any application for the purpose of seeking redress of any grievance
relating to the Executive's employment should be made either orally or
in writing to the Board.
10. A contracting-out certificate is not in force in respect of the
Executive's employment.
11. Details of the Executive's work outside the UK are contained in clause
3.2.
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