DATED 23 February 2006
SETTLEMENT AGREEMENT
WITHOUT PREJUDICE
INTAVENT ORTHOFIX LIMITED (1)
XXXXXX MOULD (2)
Xxxxx & Xxxxxxx
Juxon House
000 Xx Xxxxx Xxxxxxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
Ref: NW/AP/24469-6
THIS AGREEMENT is made the 23rd day of February 0000
X X X X X X N :
(1) INTAVENT ORTHOFIX LIMITED (No. 02853159) whose registered office is at
0 Xxxxxxx Xxxxx, Xxxxxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx, XX0 0XX ("the
Company");
(2) XXXXXX MOULD of Xxxxxxxxx Xxxxx, Xxxxxxx Xxx, Xxxx Xxxxxxx, Xxxxxxxxx,
XX00 0XX ("Mr Mould").
IT IS AGREED as follows:
1. TERMINATION
1.1 Mr Mould's employment and all other offices held by Mr Mould with the
Company will terminate on 23 February 2006 ("the Departure Date").
1.2 The Company will pay Mr Mould's salary and pay in lieu of holiday not
taken, accrued up to the Departure Date and Mr Mould's bonus
entitlement of US$ 25,344 under the Company's 2005 Incentive
Compensation Plan. Income tax and employee's national insurance
contributions and employee's contributions to the Company's pension
scheme ("the Pension Scheme") and any other deductions required by law
will be deducted through the payroll in the normal way.
1.3 Mr Mould's Form P45 will be issued as soon as reasonably practicable
after the Departure Date and any sums paid after the issue of the P45
will be paid less basic rate tax only. Mr Mould will be personally
liable for any additional taxes due in respect of such payments.
2. EXPENSES
2.1 Mr Mould should submit his final expenses claim in the normal manner
within five (5) working days of the Departure Date. The Company will
then reimburse Mr Mould for reasonable business expenses wholly,
exclusively and necessarily incurred in the performance of his duties
up to the Departure Date subject to Mr Mould's compliance with the
Company's expenses procedures and production of satisfactory receipts.
3. COMPENSATION
3.1 By way of compensation for termination of employment, the Company
shall pay Mr Mould, without any admission of liability, the sum of
(pound)214,250 ("the Settlement Sum") in accordance with Clause 3.2,
(less any tax or employee's national insurance or any other sum that
the Company is required by law (or entitled under the terms of this
Agreement) to deduct ("the
Deductions")). The Company believes that up to (pound)30,000 can be
paid gross on the basis that it is taxable only under Chapter 3 Part 6
of the Income Tax (Earnings and Pensions) Xxx 0000, and will make the
payment on that basis, in reliance on Mr Mould's undertaking to be
responsible for any further tax that may be due and his indemnifying
the Company in accordance with Clause 5.3.
3.2 Subject to receipt by the Company of a copy of this Agreement duly
signed by Mr Mould, a copy of the letter from the Legal Adviser
pursuant to Clause 7.8, and provided that at that date Mr Mould has
not instituted any legal proceedings as warranted by Clause 7.5 the
Settlement Sum shall be paid by cheque or bank transfer on 10 April
2006.
4. CONTINUATION OF BENEFITS
4.1 The Company shall by way of further compensation for termination of
employment and without any admission of liability whatsoever procure
that Mr Mould shall remain covered under his current BUPA medical
insurance scheme until 22 February 2007.
5. INDEMNITY
5.1 Mr Mould agrees that he is liable for the full amount of any tax
(including without limitation, income tax and employee's national
insurance contributions) which may become payable arising from his
employment and the Settlement Sum and/or the payments and the
arrangements set out in this Agreement or arising out of the
termination of his employment with the Company and any interest or
penalties imposed in connection therewith, as well as any costs,
claims, damages or other expenses which the Company may incur as a
result of challenging such demand for tax.
5.2 The Company shall make reasonable efforts to notify Mr Mould promptly
following receipt by it of any demand or claim for tax. No challenge
(including an appeal against such demand) shall be initiated by the
Company unless Mr Mould gives the Company reasonable notice in writing
addressed to the Company Secretary that he wishes to make such a
challenge and Mr Mould has given sufficient information or
instructions to the Company to enable it to make the challenge. The
Company will give Mr Mould reasonable co-operation in making such a
challenge (provided that any such co-operation shall not involve the
Company in any costs or expenses). In the absence of such a notice
from Mr Mould requesting that the Company challenge the demand, the
Company shall comply with the tax demand.
5.3 Mr Mould agrees to indemnify the Company on a continuing basis against
any demand for tax or any other sums as set out in Clause 5.1 and Mr
Mould shall be liable under this indemnity or in relation to any such
demand and shall pay the Company any sums so due within 7 days of
receipt of a written notification from the Company. This indemnity
shall not apply to any tax or employee's national insurance
contributions that have already been deducted from any sums paid to Mr
Mould by the Company.
5.4 For the avoidance of doubt, the indemnity given under Clause 5.3 shall
extend to any income tax, employee's national insurance contributions,
interest, penalties, costs, claims, damages or other expenses arising
in respect of the first (pound)30,000 of the Settlement Sum if the
Inland
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Revenue and/or the Contributions Agency do not accept the parties'
agreed treatment of the Settlement Sum as taxable only under Sections
403 and 404 of the Income Tax (Earnings and Pensions) Xxx 0000.
6. COMPANY PROPERTY
6.1 Mr Mould agrees to return to the Company on or before the Departure
Date in good condition (fair wear and tear excepted) and without
modification all property (including but not limited to documents,
mobile phone, laptop computer, credit or charge cards, keys, security
passes) belonging to the Company or relating to the business of the
Company or any of their respective officers, employees, customers,
suppliers, bankers, agents or professional advisers which are in Mr
Mould's possession or under his control. Mr Mould further agrees to
return the Company car to Xx X. Xxxxxx at the Maidenhead office by 4pm
Tuesday, 28 February 2006 and in the meantime to ensure that the
Company car is kept in good condition and to comply with all
requirements of the insurance policy and the Company's car policy.
6.2 The obligation in Clause 6.1 applies to all documents and records
including, but not limited to: books, correspondence, files, manuals,
customer documentation, statistics, papers, materials, reports,
minutes, plans, records, surveys, diagrams and computer printouts and
to computer disks, CD Roms, audio tapes and any other medium for
storing information and all copies, drafts, reproductions, notes,
extracts or summaries in whatever form.
6.3 Mr Mould shall immediately inform the Company of the passwords used by
him on computers which are the property of the Company and deliver up
all computer disks and CD Roms in accordance with Clause 6.1 and shall
delete from the hard disk of any computer which is his personal
property, all records and information belonging to or prepared for or
obtained from the Company or any of their clients or customers.
6.4 If Mr Mould wishes to transfer the telephone number of the Company
mobile phone which he had been using up to the Departure Date to his
own personal telephone, the Company will provide reasonable
co-operation provided that he arranges such transfer within 14 days of
the Departure Date and he undertakes full responsibility for any and
all costs, including but not limited to line rental and call costs,
associated with that mobile telephone number from the Departure Date
and indemnifies the Company for any claims for such costs. Mr Mould
agrees to return the mobile phone within 14 days of the Departure
Date.
7. SETTLEMENT AND WAIVER
7.1 Mr Mould asserts that he may have statutory claims and could bring
proceedings in an Employment Tribunal against the Company and/or any
of its Group Companies for:
(a) unfair dismissal;
(b) redundancy;
(c) breach of contract;
(d) unauthorised deduction of wages;
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(e) sex discrimination;
(f) race discrimination;
(g) disability discrimination;
(h) claims relating to a protected disclosure.
7.2 While the Company and any of its Group Companies disputes the
assertion, Mr Mould agrees to accept the Settlement Sum and the
arrangements contained in this Agreement in full and final settlement
of:
7.2.1 his entitlement to bring the claims in Clause 7.1 above; and
7.2.2 any and all present and future claims, rights of action, remedies,
costs and expenses whatsoever and howsoever arising which he has or
may have in any jurisdiction against the Company or any of its Group
Companies or any of their directors or officers, employees,
professional advisers, agents or shareholders arising from or in
connection with his employment with the Company or any of its Group
Companies and/or the termination of such employment or loss of any
office, or any rights he has or may have under any existing or
proposed bonus or incentive scheme or arrangement, or any pension
provision relating to the Pension Scheme, including any common law or
statutory claims, whether under English law, European law, or any
other applicable law such as (but not limited to) compensation for
breach of contract, wrongful dismissal, tort, and any and all of the
Statutory Claims. The parties expressly agree that this waiver shall
apply to future claims by Mr Mould against the Company and its Group
Companies arising out of or relating to his employment or its
termination or any act or omission by such company after the
termination of his employment regardless of the fact that those may be
unknown to either Mr Mould, to the Company or to a Group Company of
the Company or the factual basis for such a claim may not be known or
may not yet have arisen.
7.3 The Statutory Claims referred to in Clause 7.2 of this Agreement are
claims against the Company and its Group Companies and/or their
officers, employees and agents for breaches of the Equal Pay Xxx 0000,
the Sex Discrimination Xxx 0000, the Race Relations Xxx 0000, the
Trade Union and Labour Relations (Consolidation) Xxx 0000, the
Disability Discrimination Xxx 0000, the Employment Tribunals Xxx 0000,
the Employment Rights Xxx 0000, the Working Time Regulations 1998, the
National Minimum Wage Xxx 0000, the Employment Relations Xxx 0000, the
Trans-national Information and Consultation of Employees Regulations
1999, the Maternity and Parental Leave, etc Regulations 1999, the
Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000, the Fixed-term Employees (Prevention of Less
Favourable Treatment) Regulations 2002, the Flexible Working
(Procedural Requirements) Regulations 2002, the Flexible Working
(Eligibility, Complaints and Remedies) Regulations 2002, the
Employment Xxx 0000; the Employment Equality (Religion or Belief)
Regulations 2003, and the Employment Equality (Sexual Orientation)
Regulations 2003, including (but not limited to) claims of unfair
dismissal, automatic unfair dismissal, a redundancy payment,
discrimination on grounds of race, religion or belief, ethnic or
national origin, sex, sexual orientation and disability
discrimination, unlawful deductions from wages, for detriment or
dismissal or selection for redundancy on the grounds related to having
made a protected disclosure, detrimental
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treatment and breaches of Mr Mould's rights and/or the obligations of
the Company's and its Group Companies under the provisions of the
legislation mentioned above, (which the Company and its Group
Companies and their officers, employees and agents dispute).
7.4 The waiver in clause 7.2 shall not affect any claim in relation to Mr
Mould's accrued pension entitlement or any industrial injury, personal
injury or any breach of the terms of this Agreement although no
admission of liability is made by the Company in relation to any such
claims (and Mr Mould confirms that he is not aware of any such claims
as at the date of this Agreement).
7.5 Mr Mould warrants that he has not and undertakes that he will not
institute any legal proceedings to or before any Employment Tribunal
or court in relation to any claim referred to in Clause 7.1 and agrees
that if any such proceedings of the nature referred to in Clauses 7.1,
7.2, 7.3 are or have been instituted by him in breach of this Clause,
the Settlement Sum will be accepted by him as being made on account of
and applied towards any basic, compensatory or any other award or
damages or costs award which may be made in his favour and the Company
shall have the option to demand the immediate repayment of the
Settlement Sum paid to Mr Mould, whereupon Mr Mould will immediately
repay such sum.
7.6 Mr Mould warrants and agrees that he has received independent legal
advice as to the terms and effect of this Agreement and in particular
as to its effect on his ability to pursue his claims (including in
particular the Statutory Claims) before an Employment Tribunal from
Xxxx Xxxx of Penningtons Solicitors, Newbury House, 00 Xxxxx Xxxx
Xxxx, Xxxxxxx, Xxxxxxxxx, XX00 0XX ("the Legal Adviser") who is a
relevant independent adviser as defined by S.203(3A) of the Employment
Rights Act 1996 and who holds appropriate insurance (as defined by
S.203(3)(d) of the Employment Rights Act 1996).
7.7 Mr Mould agrees and warrants that, having taken legal advice from the
Legal Adviser, the claims listed at Clause 7.1 are all the statutory
claims which Mr Mould has or may have against the Company and its
Group Companies and he confirms that he has raised all relevant facts
and matters pertaining to his engagement, his term of employment and
the termination of his employment and his directorship and its
termination with the Legal Adviser and the Company and he acknowledges
that the Company enters into this Agreement in reliance on the
warranty given by him in this Clause.
7.8 Mr Mould will procure that the Legal Adviser will send a letter within
two days of the execution of this Agreement to the Company's
solicitors, Xxxxx & Xxxxxxx, in the form set out in Schedule 1.
7.9 The conditions regulating compromise agreements under the Sex
Discrimination Xxx 0000, the Race Relations Xxx 0000, the Trade Union
and Labour Relations (Consolidation) Xxx 0000, the Disability
Discrimination Xxx 0000, the Employment Rights Xxx 0000, the Working
Time Regulations 1998, the National Minimum Wage Xxx 0000, the
Trans-national Information and Consultation of Employees Regulations
1999, the Employment Equality (Religion or Belief) Regulations 2003,
and the Employment Equality (Sexual Orientation) Regulations 2003, the
Part-time Workers (Prevention of Less Favourable Treatment)
Regulations 2000 and the Fixed Term Employees (Prevention of Less
Favourable Treatment) Regulation 2002 are satisfied.
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8. ONGOING OBLIGATIONS
8.1 Mr Mould will comply and continue to comply fully with his common law
and contractual obligation of confidentiality and his obligations
under Clause 8.2 of this Agreement.
8.2 The Company will pay Mr Mould an additional sum of (pound)34,973 (less
statutory deductions) (the "Additional Sum"), which sum will be paid
on the same date as the Settlement Sum in consideration for Mr Mould
hereby agreeing and undertaking that except as required by law he will
not at any time in the future without the prior written consent of the
board of the Company:
8.2.1 disclose directly or indirectly to any person the contents of this
Agreement or the terms of settlement with the Company except to his
professional advisers, the Inland Revenue and his spouse provided that
disclosure to professional advisers and spouse shall be on the
condition that they agree to honour this obligation; or
8.2.2 make or publish any public announcement, statement or comment whether
in writing or otherwise concerning the Company or any of its Group
Companies or any of their officers or employees relating to his
employment and/or termination of employment or his holding or
resignation from any directorships or other offices with the Company
and its Group Companies;
8.2.3 make any derogatory or critical statements or comments concerning the
Company or any of its current or former directors, or officers or
employees or shareholders or investors;
8.2.4 for a period of 6 months from the Departure Date, without the prior
written consent of the Company which shall not be unreasonably
withheld, within the UK carry on or be concerned or engaged or
interested, directly or indirectly, (whether as principal,
shareholder, partner, employee, officer, agent or otherwise) in any
part of trade or business which directly or indirectly competes with
the business or businesses of the Company in which he was materially
involved at any time in the year prior to the Departure Date;
8.2.5 for a period of 6 months from the Departure Date either on his own
behalf or on behalf of any person, firm or company in relation to the
business of the Company in which he was materially involved at any
time in the year prior to the Departure Date, directly or indirectly,
approach, solicit, endeavour to entice away any person who is or was a
Key Employee with whom he had dealings at any time in the year prior
to the Departure Date whether or not such person would commit any
breach of his contract of employment by reason of so leaving the
service of the Company or otherwise;
8.2.6 for a period of 6 months from the Departure Date either on his own
behalf or on behalf of any person, firm or company in relation to the
business of the Company in which he was materially involved at any
time in the year prior to the Departure Date, directly or indirectly,
employ, engage, offer employment to or offer to engage, or procure the
employment or engagement of any person who is or was a Key Employee
with whom he had dealings at any time in the year prior to the
Departure Date whether or not such person would commit any breach of
his contract of employment by reason of so leaving the Company or
otherwise;
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8.2.7 for a period of 6 months from the Departure Date either on his own
behalf or on behalf of any person, firm or company in relation to the
business of the Company in which he was materially involved at any
time in the year prior to the Departure Date, directly or indirectly,
solicit, approach or offer goods or services to or endeavour to entice
away from the Company, any person, firm or company who was a client or
customer of the Company at any time in the year prior to the Departure
Date, and in each case with whom he was materially involved by virtue
of his duties under his employment contract at any time in the year
prior to the Departure Date; and
8.2.8 for a period of 6 months from the Departure Date either on his own
behalf or on behalf of any person, firm or company in relation to the
business of the Company in which he was materially involved at any
time in the year prior to the Departure Date, directly or indirectly,
deal with or accept custom from any person, firm or company who was a
client or customer of the Company at any time in the year prior to the
Departure Date, and in each case with whom he was materially involved
by virtue of his duties under his employment contract at any time in
the year prior to the Departure Date.
8.3 For the purposes of the restrictions set out in clause 8.2 above "Key
Employee" shall mean any person who is and was (in the period of 12
months prior to the Departure Date) employed or engaged by the Company
in a management position and who by reason of such position possesses
or is likely to possess information which may be imparted in
confidence or be of a confidential nature relating to the business or
prospective business or internal affairs of the Company. If Mr Mould
applies for consent pursuant to clause 8.2.4 above he should write to
Xxxx Xxxxxxxxx providing him with full details of the proposed
activities and the Company will consider each request on its own
merits.
8.4 Mr Mould may describe the nature of his work for the Company and
explain the termination of his employment with the Company in private
discussions with any prospective employer and any recruitment
consultants to whom he should apply or who approach him provided that
such description and explanation accords with the reference at
Schedule 2 and announcement at Schedule 3 hereto.
8.5 Mr Mould agrees that if the Company becomes aware that he has breached
any of his obligations under Clause 8 of this Agreement, on or after
the Additional Sum and Settlement Sum has been paid to him, then he
will immediately repay all of such sum to the Company. The Company's
right to repayment of this sum shall be without prejudice to its right
to seek an injunction against and/or claim further damages from Mr
Mould.
9. RESIGNATION
9.1 Mr Mould will immediately provide the Company with his written
resignation from the offices which he holds in the Group to take
effect from the Departure Date, such resignation to be in the form set
out in Schedule 2 and will also resign forthwith from all other
directorships, appointments, trusteeships and positions which he holds
within the Group or as a nominee or representative of any Group
Company and agrees to execute such documents and to do such things as
are necessary to give effect to such resignations.
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10. WARRANTIES
10.1 Mr Mould represents and warrants to the Company that as at the date of
this Agreement he has not received (either orally or in writing), nor
agreed to accept (either orally or in writing) any offer, conditional
or unconditional, of a contract of service or for services or any
association with a partnership or to hold any office or of any form of
deferred remuneration (save in respect of pension payments) to take
effect at any time after the Departure Date.
11. LEGAL FEES
11.1 The Company will pay direct to Mr Mould's Legal Adviser's firm, within
twenty eight (28) days of receipt of a satisfactory copy of their
invoice to Mr Mould marked as payable by the Company, their fees and
disbursements properly, reasonably and exclusively incurred in
advising Mr Mould in relation to the termination of his employment
(including, without limitation, the negotiation and preparation of
this Agreement) up to a maximum of (pound)1000 plus VAT.
12. REFERENCE
12.1 All requests for a reference from the Company or the Group should be
directed to Xxxx Xxxxxxxxx who, subject to the Company and the Group's
duties to any recipients, will provide the Employee with a reference
in the form of Schedule 3 and Xxxx Xxxxxxxxx will respond to any
verbal enquiries which he may receive relating to a reference for the
Employee in terms which comply with the tenor of the reference at
Schedule 3.
13. ANNOUNCEMENT
13.1 The Company agrees that any written announcement to employees
regarding Mr Mould's termination of employment shall be in the form of
Schedule 4.
14. PREVIOUS TERMINATION ARRANGEMENTS
14.1 This Agreement contains all of the terms of settlement agreed between
Mr Mould and the Company and is in substitution for all previous
termination agreements or arrangements between Mr Mould and the
Company whether written or oral or implied or express which shall
terminate with effect from execution of this Agreement.
15. LITIGATION
15.1 Mr Mould agrees to provide the Company with such reasonable assistance
as it may require in the conduct of any legal proceedings anywhere in
the world in which the Company or any Group Company is or may become
involved, subject to the payment by the Company of Mr Mould's
reasonable expenses incurred in providing such co-operation and to the
extent permissible under the relevant legal jurisdiction the Company
shall also compensate Mr Mould at the rate of $500 per day for such
assistance PROVIDED THAT Mr Mould will not
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be required to provide assistance to the Company if this conflicts
with any obligations owed to his employer.
16. INTERPRETATION
16.1 "Group Company" shall mean any subsidiary or holding company of the
Company or a subsidiary of such holding company (as defined by the
Companies Acts 1985 (as amended by the Companies Act 1989)) and all
such companies together shall be referred to as "the Group" or "Group
Companies".
16.2 The Company enters into this Agreement on its own behalf and on behalf
of its respective Group Companies and the Contract (Rights of Third
Parties) Xxx 0000, s.1 (1)(a) and s.1(6) shall apply to this Agreement
to the extent that the Company's officers and employees and each of
its Group Companies and their respective officers and employees are
expressly provided with the right to enforce the waiver given by Mr
Mould pursuant to clause 7.2 together with the right to enforce the
benefit of all other clauses in this Agreement conferring rights on
third parties, but no more. The consent of a third party shall not be
required for the variation or termination of this Agreement, even if
that variation or termination affects the benefits conferred in this
Agreement on that third party.
17. GOVERNING LAW AND JURISDICTION
17.1 The terms of this Agreement shall be governed by and construed in all
respects in accordance with English law and the parties agree to
submit to the exclusive jurisdiction of the English Courts as regards
any claim or matter arising in respect of this Agreement.
18. GENERAL
18.1 This Agreement, although marked "without prejudice" will, upon
signature by both parties, be treated as an open document evidencing
an agreement binding on the parties.
19. COUNTERPARTS
19.1 This Agreement may be executed in two counterparts each of which when
executed and delivered is an original but all the counterparts
together constitute the same document.
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SCHEDULE 1
[Omitted]
SCHEDULE 2
[Omitted]
SCHEDULE 3
[Omitted]
SCHEDULE 4
[Omitted]
Signed: /s/
---
For and on behalf of INTAVENT ORTHOFIX LIMITED
Dated: 23 February 2006
----------------
Signed: /s/ Xxxxxx Mould
------------------
XXXXXX MOULD
Dated: 23 February 2006
----------------
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