Exhibit 1.3
DATED 1 FEBRUARY 2003
CABLE AND WIRELESS PLC
- and -
XXXXXX X XXXXXX
SERVICE AGREEMENT
Cable and Wireless plc
000 Xxxxxxxxx Xxxx
Xxxxxx
XX0X 0XX
THIS AGREEMENT is made on the 1st day of February 2003
BETWEEN:
(1) CABLE AND WIRELESS PLC, a company registered in England (registered no.
238525) whose registered office is at 000 Xxxxxxxxx Xxxx, Xxxxxx XX0X
0XX ("the Company");
and
(2) XXXXXX X XXXXXX of The Old Receiving Station, Green End, Dane End,
Xxxx, Hertfordshire SQ12 0NU ("the Executive")
WHEREAS the Board of Directors of the Company have approved the terms of this
Agreement under which the Executive is to be employed
IT IS HEREBY AGREED as follows:
1. Appointment
The Company shall employ the Executive and the Executive shall serve
the Company as Executive Deputy Chairman on and subject to the terms
and conditions specified herein.
2. Duration of employment
2.1 Subject to Clauses 17 below, the Employment is for a fixed term of 30
months from the Commencement Date and continuing after the end of the
fixed term until terminated by either party by giving six months
written notice to that effect on the other party expiring on or at any
time after the end of the fixed term. Such notice may be served at any
time. Notwithstanding the provisions of this Clause the Executive's
employment shall automatically terminate on the first day of the month
immediately following the month in which the Executive becomes 60 years
of age.
2.2 Notwithstanding the provisions of Clause 2.1, the Company may, at its
absolute discretion; and without any obligation to do so, elect to
terminate the Employment with immediate effect by paying to the
Executive his annual base salary pro rated in lieu of any unexpired
part of the fixed term or any unexpired part of the notice period, and
subject to such deductions for tax and National Insurance as the
Company is required to make.
3. Duties
3.1 The Executive shall be employed in the post of Executive Deputy
Chairman in which capacity he shall devote such of his time, attention
and skill as is necessary for the proper and efficient discharge of his
duties hereunder. He shall faithfully and diligently perform such
duties and exercise such powers consistent therewith as may from time
to time be assigned to or vested in him by the Board of Directors and
will work a minimum of 80 working days in each year of the employment.
He shall use his best endeavours to develop and extend the business
interests and the reputation of the Company and Group Companies.
3.2 The Company reserves the right (a) to assign to the Executive duties of
a different nature either additional to, or instead of, those referred
to in Clause 3.1 above, and/or (b) to require the Executive to perform
services for, or hold any office in, any Group Company without further
remuneration (unless otherwise agreed). However, the Executive will not
be assigned duties or required to hold office or perform services which
he cannot reasonably perform, or which are inconsistent with his role
as Executive Deputy Chairman of the Company.
3.3 The Executive shall comply with the reasonable and lawful orders of the
Chairman for the time being of the Company or given by or with the
authority of the Board of Directors and shall comply with all the
Company's rules, regulations, policies and procedures from time to time
in force, as are applicable to him.
3.4 The Executive will report to the Chairman for the time being of the
Company or to such other member of the Board of Directors as the Board
of Directors and the Executive shall from time to time agree.
4. Exclusivity of service
4.1 It is accepted that (subject to the prior written consent of the
Chairman, which will not be unreasonably withheld) the Executive will
carry out other work in addition to the duties of the Employment during
the Employment. The Executive warrants that he has disclosed to the
Chairman any agreement, arrangement, contract or understanding that he
has with any other person, firm or company in respect of the work
undertaken by him and in particular, the current offices held by the
Executive with Prudential Corporation plc, Xxxxxx Xxxxxx Sofres plc and
E University Worldwide Limited. The Executive shall not (without the
prior written consent of the Chairman, which will not be unreasonably
withheld) during the Employment accept a change in the nature of the
duties or the time engaged in respect of these current offices or
directly or indirectly be interested in, engage in, be concerned with,
or provide services to, any other person, company, business entity or
other organisation whatsoever (whether as an employee, officer,
director, agent, partner, consultant or otherwise) in respect of:-
(a) any business which is similar to or competitive with the business
of the Company or any Group Company;
(b) any other business or activity which materially affects the
proper and efficient discharge of his duties hereunder.
PROVIDED THAT the Executive may hold up to 3% of any securities in a
company which is quoted on any recognised Stock Exchange.
4.2 Subject to any written regulations issued by the Company which are
applicable to him, the Executive or his Immediate Relatives shall not
be entitled to receive or obtain directly or indirectly any discount,
rebate, commission or other benefit in respect of any business
transacted (whether or not by him) by or on behalf of the Company or
any Group Company and if he, his Immediate Relatives or any company or
business entity in which he is interested, shall directly or indirectly
obtain any such discount, rebate, commission or other benefit he shall
forthwith account to the Company or Group Company for the amount
received or value of the benefit so obtained.
4.3 The Executive confirms that he has disclosed fully to the Company all
circumstances in respect of which there is, or there might be, a
conflict of interest between the Company or any Group Company, and the
Executive or his Immediate Relatives. He agrees to disclose fully to
the Company any such circumstances which may arise during the
Employment.
5. Salary and benefits
5.1 The Company shall pay to the Executive a base salary of (pound)250,000
per annum, payable monthly in arrears by equal installments, less any
deductions required by law or as agreed by the parties hereto. The
Remuneration Committee of the Board of Directors will review annually
the base salary in accordance with the policy (from time to time in
force) relating to the remuneration of the Directors and may in its
absolute discretion increase but not decrease the base salary by such
amount as it thinks fit. If the Remuneration Committee of the Board of
Directors elects to increase the amount of the base salary to be paid
to the Executive under this Clause 5.1, the Company shall endorse a
note of the increased rate of salary in Schedule 1 hereto.
5.2 The remuneration specified in Clause 5.1 above shall be inclusive of
any fees to which the Executive may be entitled as a Director of the
Company or of any Group Company.
5.3 The Executive is entitled to participate in the Company's personal
accident insurance scheme, from time to time in force, subject to the
prevailing terms and conditions of such policy. The Company reserves
the right to amend and change the scheme at its sole discretion
providing it gives the Executive 3 months notice in writing and the
replacement benefit is broadly equivalent. In any event the Company
reserves the right to amend and change the scheme if in the opinion of
the Company it is unable to insure the benefits under the scheme at the
normal premiums applicable.
5.4 Whilst working at the Company or any Group Company location outside the
UK, medical cover will be provided in accordance with the Group's
International Health Scheme from time to time in force, subject to the
prevailing terms and conditions of such scheme. The Company reserves
the right to amend and change such scheme at its sole discretion.
6. Expenses
The Company shall reimburse to the Executive (against receipts or other
satisfactory evidence) all reasonable business expenses properly
incurred and defrayed by him in the course of the Employment, subject
to the Company's prevailing rules and policies relating to expenses.
7. Professional subscriptions
The Company will reimburse the Executive the cost of annual
subscriptions in respect of his membership of two relevant professional
institutions.
8. Incapacity and medical examinations
8.1 Provided the Executive complies with the Company's standard rules on
notification of absence due to illness or injury (as amended from time
to time) he shall continue to be paid salary and receive his
contractual benefits during any absence from work due to illness or
injury for an aggregate of 40 working days in any period of 12 months
provided however that such payment shall include any sickness or other
benefit to which the Executive is entitled under Social Security
legislation for the time being in force.
8.2 The Company may require the Executive to undergo examinations by
medical advisers appointed or approved by the Company and the Executive
authorises such advisers to disclose to the Company the results of such
examinations and to discuss with it any other matter arising from such
examinations that may affect the Executive's performance of his duties.
9. Hours of work
There are no fixed working hours. The Executive is required to work
such hours as are reasonably necessary for the efficient discharge of
the duties of the Employment. Overtime pay is not applicable. The
Executive agrees that the 48 hour current average weekly working time
contained in the Working Time Regulation ("the Regulations") shall not
apply to the Employment under this Agreement. In the event the
Executive wishes to withdraw his agreement to work beyond the said
average weekly working week he is required to give to the Company 3
months written notice to that effect.
10. Deductions
The Company shall be entitled at any time during the Employment, or in
any event on termination, howsoever arising, to deduct from the
Executive's remuneration hereunder any monies properly due from him to
the Company including but not limited to any outstanding loans,
advances, relocation expenses, the cost of repairing any damage or loss
to the Company's property caused by him (and of receiving the same),
excess holiday, and any other monies owed by him to the Company.
11. Statutory particulars and miscellaneous provisions
The statutory particulars of employment required by Section 1 of the
Employment Rights Xxx 0000 are contained in Schedule 2 hereto and form
part of the Agreement.
12. Place of work
The Executive's current place of work shall be at the Company's Head
Office wherever located. In the performance of his duties hereunder,
the Executive may be required to travel both throughout and outside the
United Kingdom.
13. Incentive Plans
13.1 The Executive shall be entitled to participate in the Company's Short
Term Incentive Plan (STIP).
13.2 The Executive shall be entitled to participate in the Company's Share
Option Plan and in any other plans applicable to Executive Directors of
the Company.
14. Holidays
14.1 The Executive shall be entitled to receive his remuneration for all
Bank and Public holidays normally observed in England and a further 7
working days' holiday in each calendar year (from 1 January to 31
December). The Executive may only take his holiday at such times as are
agreed with the Chairman or other member of the Board of Directors to
whom he reports.
14.2 In the holiday years in which the Employment commences or terminates
the entitlement to holiday shall accrue on a pro rata basis for each
complete month of service.
14.3 The Company reserves the right, at its sole discretion, to require the
Executive to take any outstanding holiday during any notice period
(whether served by the Company or the Executive) or to make payment in
lieu thereof.
14.4 Holiday entitlement for one holiday year cannot be taken in subsequent
holiday years without the prior written consent of the Chairman, or
other member of the Board of Directors to whom he reports.
15. Pension Scheme and death in service benefit
15.1 The Executive shall be entitled to participate in the LBP, subject to
its terms and conditions from time to time in force. The Company will
not make any pension contributions to the LBP on the Executive's
behalf.
15.2 The Company shall ensure that during the Employment it will effect and
maintain, at the Company's expense death-in-service benefit for the
Executive for an amount equal to four times the Executive's base salary
from time to time.
16. Reasonableness of Restrictions
16.1 The Executive recognises that, whilst performing his duties for the
Company, he will have access to and come into contact with trade
secrets and confidential information belonging to the Company or to
Group Companies and will obtain personal knowledge of and influence
over its or their customers and/or employees. The Executive therefore
agrees that the restrictions contained in Schedules 3 and 4 are
reasonable and necessary to protect the legitimate business interests
of the Company and its Group Companies both during and after the
termination of his Employment.
16.2 The Executive agrees that he will observe the obligations set out in
Schedules 3 and 4.
16.3 The Executive agrees that in the event of receiving from any person,
company, business entity or other organisation an offer of employment
either during the continuance of this Agreement or during the
continuance in force of any of the restrictions set out in Schedules 3
and 4, he will forthwith provide to such person, company, business
entity or other organisation making such an offer of employment a full
and accurate copy of this Agreement signed by the parties hereto.
17. Termination
17.1 Notwithstanding Clause 2 above, the Company may, by a majority decision
of the Board of Directors (excluding the Executive), terminate the
Employment with immediate effect (and without notice or compensation in
lieu thereof) if the Executive shall at any time:-
17.1.1 be guilty of dishonesty, or other gross misconduct, or gross
incompetence or wilful neglect of duty, or commit any other
serious breach of this Agreement; or
17.1.2 act in any manner (whether in the course of his duties or
otherwise) which does, or is likely to, bring him or the
Company or any Group Company into serious disrepute; or
17.1.3 become bankrupt, apply for or have made against him a
receiving order under Section 286 Insolvency Xxx 0000, or have
any order made against him to reach a voluntary arrangement as
defined by Section 253 of that Act; or
17.1.4 resign as a director of the Company or any Group Company
(without the written consent of the Board of Directors); or
17.1.5 be or become of unsound mind; or
17.1.6 be guilty of continuing unsatisfactory conduct or
unsatisfactory performance of his duties, after having
received a written warning from the Board of Directors
relating to the same; or
17.1.7 be convicted of an indictable offence materially affecting his
suitability of continued employment; or
17.1.8 be or become prohibited by law from being a director, as a
result of any default by him.
Any delay by the Company in exercising such right to terminate shall
not constitute a waiver thereof.
17.2 The Company may terminate the Executive's employment on 3 months'
written notice, in the event that the Executive is incapacitated by
ill-health (physical or mental) or injury from fully performing his
duties for an aggregate period of 40 working days in any period of 12
consecutive months.
17.3 The Company shall be entitled to suspend the Executive on full pay and
benefits whilst carrying out an investigation into the Executive's
involvement in an allegation concerning any matter referred to in
Clause 17.1 above. The period of such suspension shall not normally
exceed 6 weeks.
17.4 On termination of the Employment, the Executive shall forthwith return
to the Company in accordance with its instructions all equipment,
correspondence, records, specifications, software, models, notes,
reports and other documents and any copies thereof and any other
property belonging to the Company or its Group Companies (including but
not limited to computers, or other equipment, credit cards, keys and
passes) which are in his possession or under his control. The Executive
shall, if so required by the Company, confirm in writing his compliance
with his obligations under this Clause 17.4.
17.5 The Executive agrees that the Company may at its absolute discretion
require the Executive not to attend at work and/or not to undertake all
or any of his duties hereunder during any period of notice (whether
given by the Company or the Executive), provided always that the
Company shall continue to pay the Executive's salary and contractual
benefits.
17.6 The termination of the Employment shall be without prejudice to any
right the Company may have in respect of any breach by the Executive of
any of the provisions of this Agreement which may have occurred prior
to such termination.
17.7 In the event of termination of the Employment hereunder, the Executive
agrees that he will not at any time after such termination represent
himself as still having any connection with the Company or any Group
Company save as a former employee for the purpose of communicating with
prospective employers or complying with any applicable statutory
requirements.
18. Directorships
18.1 Unless otherwise requested in writing by the Board of Directors, the
Executive shall forthwith in writing resign from all directorships,
trusteeships and other offices he may hold from time to time with the
Company or any Group Company without compensation for loss of office
but his resignation in accordance with the terms of this clause shall
be without prejudice to any claim for compensation or damages the
Executive may have under the terms of this Agreement in the event of:-
18.1.1 the termination of the Employment; or
18.1.2 either party serving notice of termination of the Employment
under Clause 2 above or the Company serving on the Executive
notice of termination of the Employment under Clause 17.2
above; or
18.1.3 the Company exercising its rights under Clause 17.5 above.
18.2 On the termination of the Employment, the Executive shall forthwith
transfer (without payment) to the Company (or as the Company may
direct) any nominee shares provided by it or any third party in any
Group Company to him.
18.3 The Executive shall at the time of executing this Agreement appoint the
Company as his attorney by executing a power of attorney in the form
set out in Schedule 5 to do and sign in his name and on his behalf any
things and documents as may be required under the constitution of each
company to make his resignation effective.
18.4 The Executive will be eligible to benefit from any directors and
officers liability insurance cover in force from time to time, which is
maintained by the Company for the benefit of directors of the Board of
Directors. Copies of the insurance cover can be obtained from the
Company Secretary's office.
18.5 In the absence of directors and officers liability insurance cover as
specified in Clause 18.4, as far as the law permits, the Company agrees
to indemnify the Executive against liability as specified in Clause
18.4 incurred by him in performance of his duties as a director of the
Company. Further, the Company will indemnify the Executive out of its
own assets against any liability incurred by him as a director in
defending any civil or criminal proceedings which relate to anything
done, or omitted, or claimed to have been done or omitted by him as a
director of the Company;
(a) in which judgment is given in his favour;
(b) in which he is acquitted; or
(c) in connection with any application under any legislation for
relief from liability in respect of any such act or omission
where relief is granted to him by the court.
19. Liquidation for reconstruction or amalgamation
The Executive shall have no claim against the Company if the Employment
is terminated by reason of the liquidation of the Company for the
purposes of amalgamation or reconstruction provided that he is offered
employment with any concern or undertaking resulting from such
amalgamation or reconstruction on terms and conditions which taken as a
whole are not substantially less favourable than the terms of this
Agreement.
20. Insider dealing
The Executive is required during the Employment with the Company and
any period of employment by a Group Company, under this or any
subsequent Agreement, and for a period of twelve months after the
termination of the Employment by the Company or any Group Company to
comply (and ensure that his spouse and dependent children comply) with
all applicable rules of law, every regulation of The London Stock
Exchange Limited and every other market on which the Company is listed
and any applicable Code of Conduct of the Company in relation to
dealings in shares, debentures or other securities of the Company or
any other Group Company and any unpublished price sensitive information
affecting the securities of any other company. Further, in relation to
overseas dealings he will also comply with all laws of the State and
all regulations of the Stock Exchange market or dealing system in which
such dealings take place. Failure to comply with these obligations
during the course of the Employment will constitute gross misconduct.
21. Severability
The various provisions and sub-provisions of this Agreement and the
Schedules attached hereto are severable. If any provision or
sub-provision (or identifiable part thereof) is held to be invalid or
unenforceable by any court of competent jurisdiction, then such
invalidity or unenforceability shall not affect the validity or
enforceability of the remaining provisions or sub-provisions (or
identifiable parts thereof) in this Agreement or its Schedules.
22. Warranty
The Executive represents and warrants that he is not prevented by any
agreement, arrangement, contract, understanding, Court Order or
otherwise, which in any way directly or indirectly restricts or
prohibits him from fully performing the duties of the Employment, or
any of them, in accordance with the terms and conditions of this
Agreement.
23. Notices
Any notice to be given hereunder may be delivered by either party by
personal delivery or first class post addressed to the other party (in
the case of the Company) to its Registered Office for the time being
and (in the case of the Executive), to his last known address. Notices
served by post shall be deemed served on the second business day after
the date of posting. For the purposes of this Clause, "business day"
means Mondays to Fridays (inclusive) excluding UK Bank Holidays.
24. Definitions
24.1 In this Agreement the following words and cognate expressions shall
have the meanings set out below:-
Commencement Date: shall mean the 1 February 2003.
Employment: shall mean the Executive's employment under the terms and
conditions of this Agreement.
a Group Company includes any firm, company, corporation or other
business entity:-
(a) which is directly or indirectly controlled by the Company; or
(b) which directly or indirectly controls the Company; or
(c) which is directly or indirectly controlled by a third party who
also directly or indirectly controls the Company; or
(d) which is the successor in title or assign of the firms,
companies, corporations or other business entity referred to in
this Clause 24.1; or
(e) in which any other firm, company, corporation, or other business
entity referred to above has a beneficial ownership of or
controls 20% or more of the issued share capital of its capital
assets.
The Board of Directors: shall mean the Board of Directors of the
Company.
Executive Directors: shall mean the executive directors serving on the
Board of Directors.
Immediate Relatives: shall include husband, wife, common law spouse,
children, brothers, sisters, cousins, aunts, uncles, parents,
grandparents, and the aforesaid relatives by marriage.
LPB: shall mean the Company's Lifetime Benefits Plan.
Remuneration Committee: shall mean the Remuneration Committee of the
Board of Directors, from time to time.
25. Construction
25.1 The provisions of the Schedules hereto and any additional terms
endorsed in writing by or on behalf of the parties hereto shall be read
and construed as part of this Agreement and shall be enforceable
accordingly.
25.2 The benefit of each agreement and obligation of the Executive under
Schedules 3 and/or 4 hereto of this Agreement may be assigned to and
enforced by all successors and assigns for the time being of the
Company and such agreements and obligations shall operate and remain
binding notwithstanding the termination of this Agreement.
26. Prior agreements
This Agreement cancels and is in substitution for all previous letters
of engagement, agreements and arrangements (whether oral or in writing)
relating to the subject-matter hereof between the Company and/or any
Group Company and the Executive all of which shall be deemed to have
been terminated by mutual consent. This Agreement constitutes the
entire terms and conditions of the Employment and no waiver or
modification thereof shall be valid unless in writing, signed by the
parties and only to the extent therein set forth.
27. Governing law
This Agreement is governed by and construed in accordance with the laws
of England. The parties submit to the exclusive jurisdiction of the
English Courts.
SCHEDULE 1
Variations of this Agreement
Increase in salary
By their respective signatures in Columns 4 and 5 set opposite the relevant
entry in Column 1 on the date stated in Column 3 the parties agree that the
Executive's base salary payable under Clause 5.1 is increased to the annual rate
stated in Column 1 with effect from the date stated in Column 2.
1 2 3 4 5
Revised Annual Effective Date Date of Signed on behalf Signed by the
Rate of Salary of increase this Entry of the Company Executive
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SCHEDULE 2
Statutory particulars of employment
1. Continuity of employment
The Executive's period of continuous employment commenced on 1 February
2003. No other period of employment with any previous employer is
regarded as continuous with the employment of the Executive by the
Company.
2. Grievance procedure
If the Executive has any grievance concerning any aspect of his
Employment, he should raise this at the first instance with the
Chairman. If the matter is not satisfactorily resolved, he may raise it
with the Board of Directors, or a committee nominated by the Board of
Directors.
3. Disciplinary procedure
The Company expects the highest standards of performance and conduct
from the members of its Board of Directors. There is no disciplinary
procedure applicable to the Employment (subject to the Executive's
rights under the Employment Act 2002).
4. Pension scheme
There is no contracting-out certificate in force in relation to the
Employment.
5. Collective agreements
There are no collective agreements with trade unions which directly
affect the terms and conditions of the Employment.
SCHEDULE 3
Confidentiality & intellectual property rights
1. Confidentiality
1.1 Subject to Paragraph 3 below, the Executive shall during the Employment
with the Company or any Group Company, and at all times (without limit)
after the termination thereof, directly or indirectly
1.1.1 not use or exploit for his own purposes or those of any other
person, company, business entity or other organisation
whatsoever; or
1.1.2 not disclose to any person, company, business entity or other
organisation whatsoever;
any trade secrets or confidential information relating or belonging to
the Company or its Group Companies including but not limited to any
such information relating to customers, customer lists or requirements,
price lists or pricing structures, marketing and information,
Intellectual Property, business plans or dealings, technical data,
employees or officers, financial information and plans, designs,
formulae, product lines, research activities, any document marked
"Confidential", or any information which the Executive has been told is
"Confidential" or which he might reasonably expect the Company would
regard as "Confidential", or any information which has been given to
the Company or Group Company in confidence by customers, suppliers or
other persons.
2. Notes and memoranda
The Executive shall not at any time during the continuance of the
Employment make any notes or memoranda relating to any matter within
the scope of the Company's business, dealings or affairs otherwise than
for the benefit of the Company or any Group Company. All such notes and
memoranda made by the Executive shall remain at all times the property
of the Company.
3. Exceptions to paragraph 1
3.1 The obligations contained in Paragraph 1 shall not apply:-
3.1.1 to any information or knowledge which may subsequently come
into the public domain unless it is other than by way of
unauthorised disclosure (whether by the Executive or a third
party or subject to clause 3.1.4);
3.1.2 to any act of the Executive in the proper performance of the
duties of the Employment;
3.1.3 where such use or disclosure has been properly authorised by
the Company;
3.1.4 to any information which the Executive is required to disclose
in accordance with Orders of a Court of competent jurisdiction
or any request properly made by any Statutory Regulatory
Authority.
4. Third party confidentiality
The Company or its Group Companies may from time to time be entrusted
with confidential or proprietary information, trade secrets,
Intellectual Property of any other person, firm, company, corporation,
business entity or other organisation. In such circumstances, the
Executive agrees to be bound by any contractual undertakings or
obligations which the Company or any Group Company have agreed to
impose on its or their employees in respect thereof. He further agrees
to enter into any confidentiality undertaking that the Company or any
Group Company may reasonably require, for the protection of its
legitimate interests, him to enter into with any third party in respect
thereof.
5. Termination
On the termination of the Employment with the Company and/or any Group
Company or the Company exercising its rights under Clause 17.5, the
Executive shall forthwith account for and deliver up to the Company all
documents, software, disks and other information- storing medium
(including all copies, summaries, notes and reproductions thereof) in
his possession, custody or control which contain information or data:-
(a) belonging to the Company or any Group Company (or their
customers or suppliers) relating to the past, existing or
proposed business activities of the Company or any Group
Company; or
(b) belonging to any third party who has given such information to
the Company or any Group Company in confidence or on a
restricted basis.
6. Copyright
6.1 All records, documents, papers (including copies and summaries thereof)
and other copyright protected works made or acquired by the Executive
in the course of the Employment shall, together with all the worldwide
copyright and design rights in all such works, be and at all times
remain the absolute property of the Company.
6.2 The Executive hereby irrevocably and unconditionally waives all rights
granted by Chapter IV of Part I of the Copyright, Designs and Patents
Xxx 0000 that vest in him (whether before, on or after the date hereof)
in connection with his authorship of any copyright works in the course
of his Employment, wherever in the world enforceable including, without
limitation, the right to be identified as the author of any such works
and the right not to have any such works subjected to derogatory
treatment.
7. Patents Xxx 0000
7.1 The Company and the Executive acknowledge and accept the provisions of
Sections 39 to 42 of the Patents Xxx 0000 ("the Act") relating to the
ownership of employees' inventions and the compensation of employees
for certain inventions respectively.
7.2 The Executive acknowledges and agrees that by virtue of the nature of
his duties and the responsibilities arising he has a special obligation
to further the interests of the Company within the meaning of Section
39(l)(b) of the Act.
7.3 Any invention, development, process, plan, design, formula,
specification, program or other matter or work whatsoever (collectively
"the Inventions") made, developed or discovered by the Executive,
either alone or in concert, whilst the Executive is employed by the
Company shall forthwith be disclosed to the Company and subject to
Section 39 of the Act shall belong to and be the absolute property of
the Company.
7.4 With respect to those rights in the Inventions which do not belong to
the Company pursuant to Paragraph 7.3 (collectively "Executive
Rights"), the Executive at the request and cost of the Company (and
notwithstanding the termination of the Employment) shall forthwith
license or assign (as determined by the Company) to the Company the
Executive Rights and shall deliver to the Company all documents and
other materials relating to the Inventions. The Company shall pay to
the Executive such compensation for the license or assignment as the
Company shall determine in its absolute discretion, subject to Section
40 of the Act.
7.5 The Executive shall at the request and cost of the Company (and
notwithstanding the termination of the Employment) sign and execute all
such documents and do all such acts as the Company may reasonably
require:-
7.5.1 to apply for and obtain in the sole name of the Company alone
(unless the Company otherwise directs) patent, registered
design, or other protection of any nature whatsoever in
respect of the Inventions in any country throughout the world
and, when so obtained or vested, to renew and maintain the
same;
7.5.2 to resist any objection or opposition to obtaining, and any
petitions or applications for revocation of any such patent,
registered design or other protection; and
7.5.3 to bring any proceedings for infringement of any such patent,
registered design or other protection.
7.6 The Company shall decide, in its sole discretion, whenever to apply for
patent, registered design or other protection in respect of the
Inventions and reserves the right to work any of the Inventions as a
secret process.
8. Definitions
8.1 The definitions set out in Clause 24 of the Agreement shall also apply
to this Schedule 3 and for the purposes of this Schedule 3 the
following words shall have the meaning set out below:-
Intellectual Property: includes letters patent, trade marks (whether
registered or unregistered), designs, utility models, copyright or
applications for any of the foregoing, discoveries, creations,
inventions or improvements, know-how, business names (whether or not
registered).
SCHEDULE 4
Post-employment restraints
1. Non-competition
Without prejudice to Clause 4 of this Agreement, the Executive hereby
agrees that he shall not (without the written consent of the Board of
Directors) during the Restricted Period, within the Prohibited Area and
whether on his own account or in conjunction with or on behalf of any
other person, firm, company or other organisation, and whether as an
employee, director, principal, agent, consultant or in any other
capacity whatsoever in competition with the Company directly or
indirectly (a) be employed by, or (b) be engaged in, or (c) perform
services in respect of, or (d) be concerned with:-
1.1 the research into, development, manufacture, supply or marketing of any
product which is of the same or similar type to any product researched,
or developed, or manufactured, or supplied, or marketed by the Company
during the two years immediately preceding the commencement of the
Restricted Period;
1.2 the development or provision of any services (including but not limited
to technical and product support, or consultancy or customer services)
which are of the same or similar type to any services provided by the
Company during the two years preceding the commencement of the
Restricted Period.
PROVIDED ALWAYS that the provisions of this Paragraph 1 shall apply
only in respect of those products or services (a) with which the
Executive was either personally concerned or for which he was
responsible whilst employed by the Company during the two years
immediately preceding the commencement of the Restricted Period, and
(b) in respect of which he has had access to any confidential
information or trade secrets belonging to the Company or any Group
Company in the two years immediately preceding the commencement of the
Restricted Period.
2. Non-solicitation of customers
The Executive hereby agrees that he shall not during the Restricted
Period, whether on his own behalf or in conjunction with any person,
company, business entity or other organisation whatsoever in
competition with the Company directly or indirectly (a) solicit, or (b)
assist in soliciting, or (c) accept, or (d) facilitate the acceptance
of, or (e) deal with, the custom or business of any Customer or
Prospective Customer:-
2.1 with whom the Executive has had personal contact or dealings on behalf
of the Company during the two years immediately preceding the
commencement of the Restricted Period;
2.2 with whom employees reporting to the Executive have had personal
contact or dealings on behalf of the Company during the two years
immediately preceding the commencement of the Restricted Period;
2.3 for whom the Executive was directly responsible during the two years
immediately preceding the commencement of the Restricted Period.
3. Non-solicitation of employees
The Executive hereby agrees that he will not during the Restricted
Period, either on his own account or in conjunction with or on behalf
of any other person, company, business entity, or other organisation
whatsoever directly or indirectly:-
3.1 induce, solicit, entice or procure, any person who is a Company
Employee to leave such employment where that person is:-
3.1.1 a Company Employee on the commencement of the Restricted
Period; or -
3.1.2 had been a Company Employee in any part of the three months
immediately preceding the commencement of the Restricted
Period
3.2 accept into employment or otherwise engage or use the services of any
person who:-
3.2.1 is a Company Employee on the commencement of the Restricted
Period; or
3.2.2 had been a Company Employee in any part of the three months
immediately preceding the commencement of the Restricted
Period.
4. Non-interference with suppliers
The Executive hereby agrees that he will not during the Restricted
Period, either on his own account or on account of any other person,
company, business entity or other organisation whatsoever directly or
indirectly (a) interfere, or (b) seek to interfere, or (c) induce
and/or incite another person, company, business entity or other
organisation to interfere, or (d) take steps to interfere, with the
continuance of supplies to the Company (or the terms relating to such
supplies) from any suppliers who have been supplying components,
products, material or services to the Company and/or any Group Company
at any time in the two years immediately preceding the commencement of
the Restricted Period.
5. Applicability to group companies
Paragraphs 1, 2, 3, 4 and 6 in this Schedule 4 shall also apply as
though references to "Group Company" were substituted for references to
the "Company". The obligations undertaken by the Executive pursuant to
this Schedule 4 shall, with respect to each Group Company, constitute a
separate and distinct covenant and the invalidity or unenforceability
of any such covenant shall not affect the validity or enforceability of
the covenants in favour of the Company or any other Group Company
PROVIDED ALWAYS that this Paragraph 5 shall only apply to those Group
Companies (a) to whom the Executive gave his services, or (b) with whom
he was concerned, or (c) in respect of whom he was responsible during
any time in the two years immediately preceding the commencement of the
Restricted Period.
6. Definitions
6.1 For the purposes of this Schedule 4, the following words and cognate
expressions shall have the meanings set out below:
Customer: shall mean any person, firm, company or other organisation
whatsoever to whom the Company has supplied goods or services.
Prospective Customer: shall mean any person, firm, company or other
organisation whatsoever to whom the Company has offered to supply goods
or services, or to whom the Company has provided details of the terms
on which it would or might be willing to supply goods or services, or
with whom the Company has had any negotiations or discussions regarding
the possible supply of goods or services.
Board of Directors: and Group Company: shall have the meanings ascribed
in Clause 24 of the Agreement.
Company: shall mean Cable and Wireless plc and its successors in title
and assigns.
Prohibited Area: means:
(a) the United Kingdom;
(b) any other country in the world where, on the commencement of the
Restricted Period, the Company develops, sells, supplies,
manufactures or researches its products or services and in
respect of which the Executive has been responsible (whether
alone or jointly with others), concerned or active on behalf of
the Company during any part of the two years immediately
preceding the commencement of the Restricted Period.
Company Employee means any person who was employed by (i) the Company
or (ii) any Group Company, and
(a) with whom the Executive had personal contact or dealings in
performing his duties of his employment; or
(b) who reported to the Executive; or
(c) who had material contact with customers or suppliers of the
Company in performing his or her duties of employment with the
Company or any Group Company (as applicable); or
(d) who was a member of the Board of Directors or their direct
reports; or
(e) who was a member of the senior management team of any Group
Company; or -
(f) whose job duties involved research and development to a material
extent.
Restricted Period: shall have the meanings as set out in the
circumstances defined below:
(a) In the event that the Company does not exercise its rights
under Clause 17.5 of this Agreement, the "Restricted Period"
is 12 months immediately following the date when the
Employment hereunder terminates.
(b) In the event that the Company does exercise its rights under
Clause 17.5 of this Agreement and the period of such
suspension of the Executive pursuant to Clause 17.5 is 12
months or less, the "Restricted Period" shall be 12 months
immediately following the date of the start of such period of
suspension under Clause 17.
SCHEDULE 5
Power of Attorney
By this Power of Attorney made on 2 June 2003, I, XXXXXX X XXXXXX in accordance
with the terms of the service agreement ("the Service Agreement") HEREBY APPOINT
the Company to act as my attorney with authority in my name and on my behalf (so
that words and expressions defined in the Service Agreement shall have the same
meaning herein):-
(a) on or after the Employment has terminated to do any things and sign any
documents as may be required under the constitution of the Company and
each Group Company to make my resignation as a director from those
companies effective; and
(b) to appoint any substitute and to delegate to that substitute all or any
powers conferred by this Power of Attorney.
I declare that this Power of Attorney, having been given by me to secure my
obligations under Clause 19 of the Service Agreement, shall be irrevocable in
accordance with Section 4 of the Powers of Xxxxxxxx Xxx 0000.
IN WITNESS whereof this Power of Attorney has been duly executed.
EXECUTED as a DEED by )
XXXXXX X XXXXXX )
in the presence of: )
Witness:
Name:
Address:
Occupation:
IN WITNESS whereof the parties hereto have executed this Agreement as a Deed on
the day and year first above written.
EXECUTED as a DEED )
for and on behalf of )
CABLE AND WIRELESS plc )
by: )
Director
Director/Secretary
EXECUTED as a DEED by )
XXXXXX X XXXXXX )
in the presence of: )
Witness:
Name:
Address:
Occupation:
