PRIVATE AND CONFIDENTIAL
Exhibit
10.13
DATED
13 MARCH, 2007
(1)
INTERFACE EUROPE LTD
(2)
XXXXXXX XXXXXXX XXXXXXX
|
OVERSEAS
SERVICE AGREEMENT
|
-
1
-
THIS
DEED is
made
on
BETWEEN:-
|
(1)
|
INTERFACE
EUROPE LTD whose
registered office is at Xxxxx Xxxxx, Xxxxx, Xxxxxxx XX0 0XX ("the
Company");
and
|
|
(2)
|
XXXXXXX
XXXXXXX XXXXXXX
of
The
Old School House, South Cape, Laxey, Isle of Man, IM4 7HZ
("the
Executive")
|
THE
PARTIES AGREE
as
follows:
| 1. |
1DEFINITIONS"\l
1 DEFINITIONS
|
| 1.1 |
In
this Agreement the following words and expressions shall have the
following meanings:-
|
|
“the
Act”
|
means
the Employment Rights Xxx 0000
|
|
“Associated
Company”
|
means
a company or undertaking (which is not a Subsidiary or Holding Company
of
the Company or of a Group Company) of which more than 20 per cent
of the
Equity Share Capital is for the time being owned by the Company or
a Group
Company or which for the time being owns more than 20 per cent of
the
Equity Share Capital of the Company or a Group Company
|
|
“Board”
|
means
the Board of Directors of the Company from time to time
|
|
"CEO"
|
means
the President and Chief Executive Officer of Interface, Inc.
|
|
“Employment”
|
means
the employment of the Executive under this Agreement or, where the
context
so requires, the duration of the employment of the Executive under
this
Agreement
|
|
“Equity
Share Capital”
|
has
the meaning given to it in section 744 of the Companies Xxx
0000
|
-
2
-
|
“Group”
|
means
(i) the
Company
(ii) any
Holding Company for the time being of the Company
(iii) any
Subsidiary for the time being of the Company or of the Company's
Holding
Company
(iv) any
Associated Company, and
(v) any
other company or body corporate or other form of business entity
the name
of which is notified in writing to the Executive by the Company as
being a
member of the Group
|
|
“Group
Company”
|
means
any member of the Group, other than the Company, from time to
time
|
|
“Holding
Company”
and “Subsidiary”
|
have
the meanings given to them respectively in section 736 of the
Companies Xxx 0000
|
|
"Intellectual
Property Rights"
|
means
trade marks, service marks, logos, get-up, trade dress, trade names,
internet domain names, rights in designs, copyright (including rights
in
computer software) and moral rights, database rights, semi-conductor
topography rights, utility models, rights in know-how and other
intellectual property rights, in each case whether registered or
unregistered and including applications for registration, and all
rights
or forms of protection having equivalent or similar effect anywhere
in the
World
|
|
“Invention”
|
means
any invention, discovery or improvement including (without limitation)
any
know how, design, image, process, plan, drawing, formula, computer
programme, software (including source code and object code), system
or
specification which in any way affects or relates to the business
of the
Company or any Group Company (including without limitation any current,
potential or future product, service, process, equipment, system
or
activity of the Company or any Group Company) whether or not now,
or at
any future time, capable of being the subject of patent protection
(whether in the United Kingdom or in any other territory in the
World)
|
-
3
-
|
"Material"
|
means
any and all written, audio and/or visual work, any know-how, show-how,
information, technique, invention, design, drawing, specification,
component list, manual, instruction, catalogue, image, photograph,
plan,
formula, computer program, software or system, record, document,
compilation or database which in any way affects or relates to the
business of the Company or any Group Company (including without limitation
any current, potential or future product, service, process, equipment,
system or activity of the Company or any Group Company)
|
|
“Minority
Holder”
|
means
a person who, whether solely or jointly, holds or is beneficially
interested in the shares or securities of any company quoted on any
Recognised Investment Exchange provided that such holding or interest
does
not exceed 2 per cent of any single class of such shares or securities.
In
calculating whether a person is a Minority Holder there shall be
aggregated with any shares or securities held by him or to which
he is
beneficially entitled any shares or securities of the same class
which his
spouse or any dependent child holds or is beneficially entitled
to
|
|
“Person”
|
includes
any natural or legal person and any unincorporated firm, undertaking
or
similar body
|
|
"Reference
Period"
|
means
any 17 week period during the Employment
|
|
"UK
Agreement"
|
means
the service agreement entered into between the parties on the same
date as
this Agreement relating to the Executive's duties within the
UK
|
|
"Working
Time"
|
has
the meaning given to it in Regulation 2 of the Working Time
Regulations 1998
|
| 1.2 |
The
headings in this Agreement are for convenience only and shall not
affect
its interpretation or construction.
|
| 1.3 |
A
reference to any statutory or legislative provision includes a reference
to that provision as modified, replaced, amended and/or re-enacted
from
time to time.
|
| 1.4 |
Any
reference to the Executive shall, if appropriate, include his personal
representatives.
|
| 1.5 |
Words
importing one gender include the other
gender.
|
| 1.6 |
Any
reference in this Agreement to a clause or sub-clause is to the relevant
clause or sub-clause of this
Agreement.
|
| 1.7 |
The
Schedule to this Agreement forms an
integral part of this Agreement and any reference to this Agreement
includes a reference to such
Schedule.
|
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4
-
| 1.8 |
This
Agreement includes the written statement of particulars of employment
which the Company is required to give the Executive under section
1 of the
Act and therefore no separate written statement will be provided.
Whilst
most of the particulars are set out in the body of the Agreement
some are
set out in Schedule 1.
|
| 2. |
EMPLOYMENT
|
The
Company shall employ the Executive and the Executive agrees to act as President
and Chief Executive Officer of Interface’s European Flooring Division or in such
capacity of a like status as the Board or the CEO shall from time to time
reasonably require on the terms set out in this Agreement.
| 3. |
TERM
OF EMPLOYMENT
|
| 3.1 |
This
Agreement shall take immediate effect. The
Executive's period of continuous employment began on 29 July
1996.
|
| 3.2 |
Subject
to Clause 14
(Termination of Employment) the Employment shall be subject
to termination at any time by the Company giving to the Executive
12
months' prior notice in writing or by the Executive giving to the
Company
3 months' prior notice in writing.
|
| 3.3 |
Payment
in Lieu of Notice
|
| 3.3.1 |
The
Company may at any time in its absolute discretion elect to terminate
the
Employment forthwith by paying to the Executive, in lieu of the notice
period referred to in Clause 3.2
or
Clause 14.3.1
(termination on account of illness or injury) or any part thereof,
an
amount equivalent to the Salary for such period or part period. Such
a
payment shall be subject to such deductions for tax and national
insurance
as are required by law and to any other authorised deductions.
|
| 3.3.2 |
For
the avoidance of doubt:-
|
| (a) |
if
the Company terminates the Executive's employment other than in accordance
with its rights under this Agreement any entitlement to damages for
breach
of contract will be assessed on normal common law principles (including
the Executive's obligation to mitigate his loss);
and
|
| (b) |
the
right of the Company to make a payment in lieu of notice does not
give
rise to any right for the Executive to receive such a payment.
|
| 3.3.3 |
The
Company may in its absolute discretion pay any sums due under Clause
3.3.1
as
one lump sum or in instalments over the period until the date on
which
notice, if it had been served in accordance with Clause 3.2,
would have expired. Such payments will be subject to income tax and
national insurance contributions. If the Company chooses to pay in
instalments the Executive is obliged to seek alternative income over
the
relevant period and to disclose the gross amount of any such income
to the
Company as evidenced by payslips and/or invoices. The instalment
payments
shall then be reduced by the gross amount of such income.
|
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5
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| 3.4 |
Garden
Leave
|
Without
prejudice to the provisions of Clauses 3.3
(payment
in lieu of notice) and 14.2
(summary
dismissal), the Company may at any time during the Employment require the
Executive to cease performing his job for such period or periods as the Company
shall in its absolute discretion determine. During any such period of garden
leave:
| 3.4.1 |
the
Company shall continue to pay the Executive's salary and shall provide
all
benefits to which he is entitled under this
Agreement;
|
| 3.4.2 |
the
Company shall be under no obligation to provide any work for the
Executive
and shall be entitled to appoint any other person or persons to perform
the Executive's duties under this Agreement whether on a temporary
or a
permanent basis;
|
| 3.4.3 |
the
Company may forbid the Executive to enter any Group premises or to
contact
any employees, officers, customers, clients, agents or suppliers
of the
Group without its prior consent;
|
| 3.4.4 |
the
Executive shall, at the request of the Board, immediately deliver
to the
Company all or any property in his possession or control which belongs
to
the Company or any Group Company or which relates to the business
of the
Company or any Group Company, including without limitation, all items
mentioned in Clause 14.4,
save that the Executive shall not be required to return his Company
car
until the termination of the Employment;
and
|
| 3.4.5 |
for
the avoidance of doubt the Executive shall continue to be bound by
all the
Executive's obligations under this Agreement insofar as they are
compatible with the Executive being on garden leave including, without
limit, the Executive's duty of good faith and the Executive's duties
under
Clause 4.5
(Executive not to be employed in any other
business).
|
| 4. |
DUTIES
OF THE EXECUTIVE
|
| 4.1 |
The
Executive shall, in his capacity as President and Chief Executive
Officer
of Interface’s European Flooring Division be responsible to the Board and
the CEO for the management of the Company's and that Division's affairs
outside the UK.
|
| 4.2 |
The
Executive accepts that without being entitled to further remuneration
the
Company may require him to act as an officer of the Company and any
Group
Company or hold any other appointment or office as nominee or
representative of the Company and any Group
Company.
|
| 4.3 |
During
the Employment the Executive shall at all times in relation to the
Group's
business and operations (insofar as such matters are not already
covered
in Clause 4 of the UK Agreement):
|
-
6
-
| 4.3.1 |
use
his best endeavours to promote the interests and reputation of the
Group
giving at all times the full benefit of his knowledge, expertise
and
skill;
|
| 4.3.2 |
faithfully
and diligently and to the best of his ability exercise such powers
and
perform such duties in relation to the business of the Group as the
Board
and/or the CEO may from time to time
require;
|
| 4.3.3 |
keep
the Board and/or the CEO promptly and fully informed (in writing
if so
required) of his conduct of the business of the Company and any Group
Company and provide the Board and/or the CEO with all information
regarding the affairs of the Company and any Group Company and his
conduct
in relation thereto as it shall
require;
|
| 4.3.4 |
conform
to the instructions or directions of the Board and/or the CEO and
implement and apply the policy of the Company as determined by the
Board
and/or the CEO from time to time;
|
| 4.3.5 |
refrain
from making any false or misleading statements about the Company
or any Group Company;
|
| 4.3.6 |
refrain
from entering into any arrangement on behalf of the Company or any
Group
Company which is outside its normal course of business or his normal
duties or which contains unusual or onerous
terms.
|
| 4.4 |
The
Company may from time to time during any period of garden leave appoint
any other person or persons to act jointly with the Executive to
perform
the duties of the Executive under this
Agreement.
|
| 4.5 |
Subject
to the Executive's duties under the UK Agreement, the Executive shall
not
during the Employment without the prior written consent of the CEO
be
directly or indirectly employed, engaged, concerned or interested,
whether
as a director, employee, sub-contractor, partner, consultant, proprietor,
agent or otherwise, in any other business, undertaking or occupation
or
the setting up of any other business, undertaking or occupation,
or accept
any other engagement or public office but the Executive may nevertheless
be or become a Minority Holder provided that the Executive discloses
this
to the Company.
|
| 4.6 |
The
Executive shall not during or after the Employment knowingly or willingly
do or cause or permit to be done anything which is calculated or
may tend
to prejudice or injure the interests of the Company or any Group
Company
and if during the Employment the Executive shall learn of any act
or
omission by any other person whether or not employed by the Company
or any
Group Company which is calculated or may tend to prejudice or injure
the
interests of the Company or any Group Company he shall promptly report
it
to the Board and the CEO giving all necessary particulars, irrespective
of
whether this may involve some degree of self-incrimination. This
shall
include without limit any behaviour by any current or former officer
or
employee of the Company or any Group Company which could reasonably
be
construed as an attempt to entice the Executive or any other employee
of
the Company or any Group Company to leave the employment of the Company
or
any Group Company.
|
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7
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| 4.7 |
The
Executive shall hold any office in the Company and any Group Company
subject to the Articles of Association as amended from time to time.
Save
as otherwise provided in this Agreement, if the provisions of this
Agreement conflict with the Articles of Association, the Articles
of
Association will prevail.
|
| 5. |
HOURS
OF WORK
|
| 5.1 |
Subject
to the performance of any activities pursuant to the UK Agreement
or
permitted by the CEO under Clause 4.5
the Executive shall devote the whole of his working time and attention
to
the service of the Group except during holidays and any periods of
absence
due to illness or injury.
|
| 5.2 |
As
the duration of the Executive's working time is determined exclusively
by
the Executive the parties believe that the Executive falls within
Regulation 20(1) of the Working Time Regulations 1998
("the
Regulations")
so that the Executive is not affected by the limit on weekly Working
Time
contained in Regulation 4(1) of the Regulations ("Regulation 4(1)").
If this is not the case, then the Executive agrees that the limit
in
Regulation 4(1) shall not apply to the Executive and that the
Executive's working time (including overtime) may therefore exceed
an
average of 48 hours for each 7 day period in the Reference Period
whenever
this is necessary for the proper discharge of the Executive's duties.
The
Executive shall be entitled to withdraw such agreement by giving
3 months' prior written notice to the
Company.
|
| 5.3 |
The
Executive agrees that he will comply with all policies or requirements
of
the Company from time to time in force, in relation to the recording
of
Working Time.
|
| 6. |
PLACE
OF WORK
|
| 6.1 |
The
Executive will work within Europe as required by the Board and/or
the CEO
for the proper performance of his powers and duties under this
Agreement.
|
| 6.2 |
For
the purpose of performing his duties, the Executive shall undertake
such
journeys outside the UK as the Board and/or the CEO shall require.
Travelling and other expenses shall be reimbursed in accordance with
Clause 8.
|
| 7. |
SALARY
|
| 7.1 |
During
the Employment the Company shall pay to the Executive
a
basic salary at the rate of £150,000 per year which shall accrue from day
to day and be payable by equal monthly instalments in arrears on
or about
the 15th day of each month (the "Salary"). The Salary shall
be deemed to include any fees or other remuneration receivable by
the
Executive as a Director of any Group Company registered outside the
UK or
in respect of any other company or unincorporated body in which he
holds
office or any other appointment as nominee or representative of any
Group
Company registered outside the UK.
|
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8
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| 7.2 |
The
Salary shall be reviewed by the CEO from time to time and the rate
of the
Salary may be increased by the Company with effect from that date
by such
amount if any as it shall think fit. For the avoidance of doubt it
is
agreed that the Executive shall have no contractual right to any
increase
in the Salary under this Clause, and there will be no review of the
Salary
after notice has been given in accordance with Clause 3.2
or
if the Executive is in receipt of benefits under the Company's permanent
health insurance scheme.
|
| 7.3 |
During
the Employment the Company may in its absolute discretion decide
to pay to
the Executive, in addition to the Salary, bonuses of such amounts
(if any)
at such times and subject to such conditions as the CEO may in his
sole
discretion decide. For the avoidance of doubt it is agreed that the
Executive shall have no contractual right to any bonus payment under
this
Clause.
|
| 7.4 |
For
the purposes of sections 13 to 16 of the Act, the Executive
hereby consents to the deduction from his salary (or from any other
sum
due from the Company or any Group Company to the Executive which
falls
within the definition of "Wages"
in section 27 of the Act) of any sums owing by the Executive to the
Company or to any other Group Company at any time and he also agrees
to
make payment to the Company or any Group Company of any sums owed
by him
to the Company or any Group Company upon demand by the Company at
any
time. This sub-clause is without prejudice to the right of the Company
and
any Group Company to recover any sums or balance of sums owed by
the
Executive to the Company and any such Group Company by legal
proceedings.
|
| 8. |
EXPENSES
|
| 8.1 |
The
Company shall refund to the Executive all reasonable expenses properly
incurred by him in performing his duties under this Agreement, provided
that these are incurred in accordance with Company policy from time
to
time. The Company will require the Executive to produce receipts
or other
documents as proof that he has incurred any expenses he claims.
|
| 8.2 |
If
the Company provides the Executive with any credit or charge card
the
Executive shall use such card solely for those expenses referred
to in
Clause 8.1
and he shall immediately return any such card to the Company whenever
so
required by the Board, and in any event in accordance with the provisions
of Clause 3.4
(garden leave), Clause 14.4.2
(termination of employment) and Clause 15.1.3
(suspension from employment) where
applicable.
|
| 9. |
COMPANY
CAR
|
| 9.1 |
The
Company shall provide the Executive with the use of a motor car (the
model
to be determined in accordance with the Company's car policy as amended
from time to time) for use on business and private purposes and shall
pay
all fuel, and all repairs and other reasonable expenses in connection
therewith including costs of maintenance but excluding any income
tax
payable by the Executive as a benefit in kind. For the avoidance
of doubt,
the Executive shall only be entitled to be provided with one car
by the
Company, and the same car may be provided in satisfaction of the
Company's
obligations under both this Agreement and the UK
Agreement.
|
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9
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| 9.2 |
The
Executive shall:-
|
| 9.2.1 |
comply
with the Company's car policy as amended from time to time, including
without limitation by taking good care of the car and ensuring that
it is
used in accordance with the terms of the Company’s insurance policy;
and
|
| 9.2.2 |
shall
return the vehicle in good condition together with any keys to the
Company
immediately following termination of his employment hereunder or
at any
other time if so requested by the Company for the purposes of
inspection.
|
| 10. |
PENSION
AND LIFE ASSURANCE
|
| 10.1 |
The
Executive may remain a member of the pension scheme operated by the
Company, and of which he is a member, as at the date of this Agreement
("the Pension
Scheme")
subject to the rules of such scheme from time to time in
force.
|
| 10.2 |
The
Appendix contains a letter which sets out the current position with
regard
to your pension.
|
| 10.3 |
No
contracting out certificate is in force in relation to the Pension
Scheme.
|
| 11. |
PERMANENT
HEALTH INSURANCE SCHEME
|
| 11.1 |
During
the Employment the Executive shall be entitled to participate at
the
Company's expense in the Company's permanent health insurance scheme
(the
"PHI Scheme") subject always to the rules of the PHI Scheme for the
time
being in force (details of which are available on request from the
Company
Secretary), to the approval of the relevant insurer and to the conditions
set out in Clause 11.2.
|
| 11.2 |
The
Executive's participation in the PHI Scheme shall be on the basis
that:
|
| 11.2.1 |
if
the insurer fails or refuses to provide the Executive with any benefit
under the PHI Scheme, the Executive will have no right of action
against
the Company in respect of such a failure or
refusal;
|
| 11.2.2 |
the
Executive's health is such that the Company is able to obtain cover
or to
obtain cover on terms and at a premium that the Company considers
reasonable; and
|
| 11.2.3 |
in
the event that the Executive wishes to make a claim under the PHI
Scheme
the Company will use reasonable endeavours
to:-
|
| (a) |
obtain
from its insurers any forms required to initiate the Executive's
claim;
|
| (b) |
provide
the Executive with such forms in order to enable him to make a
claim;
|
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10
-
| (c) |
liaise
between the Executive and its insurers in order to assist with the
processing of the Executive's claim but the Company will neither
be liable
to the Executive for any failure or refusal on the part of the scheme
insurer to provide any benefits under the PHI Scheme nor be required
to
attempt to persuade the insurers to provide any such benefits to
the
Executive (whether by means of threatening or issuing proceedings
against
the insurer or otherwise).
|
| 11.3 |
The
Company reserves the right at any time to withdraw or amend any of
the
rules or benefits of the PHI Scheme (including the level of cover)
and any
such changes shall take effect as between the Executive and the Company
upon the Executive receiving written notice of the same from the
Company
in accordance with Clause 23.
|
| 12. |
HOLIDAY
|
| 12.1 |
The
Executive is entitled to 27 working days paid holiday in each holiday
year. The holiday year runs from 1 January to 31 December and holiday
entitlement is to be taken at such times as is agreed by the
CEO.
For the purposes of this Agreement, any holiday taken pursuant to
the UK
Agreement shall be aggregated with holiday taken pursuant to this
Agreement and the Executive may take no more than an aggregate of
35 days'
holiday in any holiday year pursuant to this Agreement and the UK
Agreement.
|
| 12.2 |
The
Executive shall not be entitled to carry forward any unused part
of his
holiday entitlement to a subsequent holiday year.
|
| 12.3 |
Where
the Employment starts or terminates during a holiday year the Executive
will be entitled in that year to such proportion of his annual holiday
entitlement as equals the proportion of time he is employed under
this
Agreement in that year, rounded to the nearest half day except that
if the
Executive has accrued sufficient holiday in a particular holiday
year to
comply with the Working Time Regulations 1998 ("the
Regulations")
no holiday entitlement shall accrue during any period of garden leave
taken in accordance with Clause 3.4.
|
| 12.4 |
The
Executive shall not be entitled to payment in lieu of any unused
part of
his holiday entitlement, except on termination of the Employment
in
accordance with Clause 12.6.
|
| 12.5 |
The
Executive shall not accrue any entitlement to holiday in respect
of
periods of absence from the office due to injury or illness of more
than
20 consecutive days absence in any holiday year, save in relation
to
statutory holiday (if any) to which the Executive is entitled as
a matter
of law.
|
| 12.6 |
On
termination of the Employment the
Executive shall be entitled to be paid in lieu of any outstanding
holiday
entitlement.
|
| 12.7 |
For
the avoidance of doubt Regulations 15(1) to 15(4) of the Regulations
do not apply to the Employment.
|
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11
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| 13. |
SICKNESS
|
| 13.1 |
If
during the Employment the Executive is absent from work due to illness
or
injury he must notify the Company as soon as possible. The Executive
shall
complete any self-certification forms which are required by the Company
immediately upon his return to work and, if his incapacity continues
for
more than 7 consecutive days (whether working days or not) shall
produce
medical certificates to cover the duration of his absence from work.
Provided the Executive complies with these requirements, undergoes
any
medical examination or tests required by the Company under
Clause 13.5
and provided the Company is satisfied that the Executive's absence
is due
to illness or injury, the Executive's absence will be regarded as
authorised.
|
| 13.2 |
The
Executive shall be entitled to receive the Salary due to him under
this
Agreement during any authorised period or periods of absence due
to
illness or injury up to a maximum of 52 weeks in aggregate in any
48 month
period ("Contractual
Sick Pay").
Thereafter he will not be entitled to any further payment from the
Company
or any other Group Company (other than by way of any Statutory Sick
Pay
due to him or any pay due to him pursuant to the terms of Clause
11)
nor to the continued provision of his benefits under this Agreement
until
the resumption of his duties.
|
| 13.3 |
Contractual
Sick Pay shall
be subject to set off by the Company in respect of any statutory
sick pay
or social security benefits to which the Executive is entitled (whether
or
not such benefits are actually
received).
|
| 13.4 |
For
statutory sick pay purposes the Executive's qualifying days shall
be his
normal working days.
|
| 13.5 |
The
Executive may at the Company's expense be required during the course
of
the Employment to attend a medical practitioner or clinic nominated
by the
Company for the purpose of a medical examination to help determine
his
fitness for continued Employment and he shall undergo any tests and
examinations reasonably required by the said medical practitioner
or
clinic and shall co-operate in ensuring the prompt delivery of any
resulting report to the Company. Notwithstanding the provisions of
the
Access to Medical Reports Xxx 0000 the Executive hereby consents to
the Company obtaining any medical report relating to his physical
or
mental health prepared by a medical practitioner who is or has been
responsible for the clinical care of the
Executive.
|
| 13.6 |
Third
Party Injury to Executive
|
| 13.6.1 |
If
the Executive is absent from work by reason of any illness or injury
caused wholly or partly by any act or omission of any third party
in
relation to which the Executive may be or become entitled to recover
damages or compensation, then all net payments made to the Executive
under
this Clause 13
in
respect of the said absence shall be repaid by the Executive if and
to the
extent that he recovers damages or compensation for loss of earnings
from
the said third party and/or from the Criminal Injuries Compensation
Authority or the Motor Insurers' Bureau or any other similar body
("the
Relevant Bodies")
by action or otherwise.
|
-
12
-
| 13.6.2 |
Where
the Executive receives any damages or compensation for loss of earnings
as
referred to in Clause 13.6.1,
he shall notify the Company in writing forthwith and shall repay
the
amount due to the Company under this Clause within 28 days of receipt
of the said damages or
compensation.
|
| 13.7 |
For
the avoidance of doubt:-
|
| 13.7.1 |
the
term "illness
or injury"
as used in this Clause 13
includes any mental or psychiatric illness and any injury, whether
or not
this has been sustained in the course of the Executive's duties;
and
|
| 13.7.2 |
the
provisions of this Clause 13
are subject to the termination provisions set out in
Clause 14
and in particular the Company's right in Clause 14.3
to
terminate on account of illness or
injury.
|
| 14. |
TERMINATION
OF EMPLOYMENT
|
| 14.1 |
Retirement
|
Notwithstanding
the other provisions of this Agreement and in particular Clause 3.2,
the
Employment will terminate on the Executive's 65th
birthday.
| 14.2 |
Summary
Dismissal
|
Notwithstanding
the provisions of Clauses 3.2
(notice
clause), 3.3
(payment
in lieu of notice) and 14.3
(termination on account of illness or injury), the Company may by written notice
to the Executive forthwith terminate the Employment (without being under any
obligation to pay any further sums to the Executive whether by way of
compensation, damages or otherwise in respect of or in lieu of any notice period
or unexpired term of this Agreement, and without prejudice to any other rights
of the Company) if the Executive:-
| 14.2.1 |
fails
or neglects efficiently and diligently to carry out his duties to
the
reasonable satisfaction of the
Board;
|
| 14.2.2 |
does
not comply with any lawful order or direction given to him by the
Board;
|
| 14.2.3 |
is
guilty of any material or persistent breach or non-observance of
any of
the provisions of this Agreement;
|
| 14.2.4 |
in
the performance of his duties or otherwise commits any act of gross
misconduct or act of misconduct having already received a final written
warning;
|
| 14.2.5 |
adversely
prejudices or by the Executive's acts or omissions (whether at or
outside
work) is likely in the reasonable opinion of the Board to prejudice
the
interests or reputation of the
Group;
|
-
13
-
| 14.2.6 |
resigns
as a director of the Company without the written consent of the Board
or
is disqualified from holding or ceases to hold office as a director
of the
Company or any Group Company by virtue of any court order, under
any
provision of general law or under any provision of the Company's
Articles
of Association save where this arises by reason of him not being
re-elected as a director of the Company at any annual general meeting
of
the Company or any Group Company at which, under the said Articles,
he is
to retire by rotation;
|
| 14.2.7 |
is
convicted of any criminal offence (excluding an offence under road
traffic
legislation in the United Kingdom and elsewhere for which a penalty
of
imprisonment cannot be imposed);
|
| 14.2.8 |
is
made the subject of a bankruptcy order or has a receiving order or
an
administration order made against him or makes any composition or
arrangement with his creditors generally or otherwise takes advantage
of
any statute from time to time in force offering relief for insolvent
debtors;
|
| 14.2.9 |
becomes
a patient within the meaning of the Mental Health Xxx 0000;
or
|
| 14.2.10 |
terminates
the UK Agreement or such agreement terminates by operation of
law,
|
or
if the
Company has cause lawfully to terminate the UK Agreement without notice or
payment in lieu of notice pursuant to its terms
| 14.3 |
Termination
on Account of Illness or
Injury
|
| 14.3.1 |
Without
prejudice to Clauses 14.2 (summary
dismissal) and 3.3
(payment in lieu of notice) and subject to Clause 14.3.1
(restrictions on dismissals in context of the PHI Scheme), but
notwithstanding any other provision of this Agreement, if the Executive
shall become unable to perform his duties properly by reason of illness
or
injury for a period or periods aggregating at least 26 weeks in any
period
of 12 consecutive calendar months ("the
Period or Periods of Incapacity")
then the Company may, by not less than 6 months' prior written notice
to
the Executive, terminate the Employment provided that the Company
shall
withdraw any such notice if during the currency of the notice the
Executive returns to full time duties and provides a medical
practitioner's certificate satisfactory to the Board to the effect
that he
has fully recovered his health and that no recurrence of his illness
or
injury can reasonably be
anticipated.
|
| 14.3.2 |
Where
the Executive is receiving benefits under the Company's permanent
health
insurance scheme ("the
PHI Benefits")
or where the Executive is awaiting a decision from the scheme insurers
in
respect of benefits under the scheme (provided that such a decision
is not
unreasonably delayed) the Company shall not terminate the Employment
for
any reason where to do so would render the Executive ineligible for
PHI
Benefits or eligible for a reduced rate of PHI Benefits PROVIDED
THAT
nothing in this sub-clause shall prevent the Company
from:-
|
-
14
-
| (a) |
terminating
the Employment pursuant to Clause 14.2 (summary
dismissal); or
|
| (b) |
terminating
the Employment under Clause 3.2 by
reason of redundancy; or
|
| (c) |
terminating
the Employment forthwith where the Executive ceases to receive PHI
Benefits
|
and
in
such circumstances the Executive agrees that the Company would be acting
reasonably in so terminating the Employment.
| 14.4 |
Upon
termination of the Employment for whatever reason the Executive shall
forthwith deliver to the Company or its authorised representative
such of
the following as are in his possession or
control:-
|
| 14.4.1 |
all
keys, security and computer passes, plans, statistics, documents,
records,
papers, magnetic disks, tapes or other software storage media including
any copies thereof which belong to the Group or which relate to the
business of the Group including all copies, records and memoranda
(whether
or not recorded in writing or on computer disk or tape) made by the
Executive of any Confidential Information (as defined by
Clause 17.5);
|
| 14.4.2 |
all
credit cards and charge cards provided for the Executive's use by
the
Company;
|
| 14.4.3 |
any
Company car provided and all keys and documents relating to it;
and
|
| 14.4.4 |
all
other property of the Group not previously referred to in this
Clause.
|
| 15. |
SUSPENSION
FROM EMPLOYMENT
AND DISCIPLINARY MEASURES
|
| 15.1 |
In
order to investigate a complaint of misconduct against the Executive
or in
which the Executive is implicated and/or during the course of any
disciplinary process to which the Executive is subject, the Company
shall
be entitled to suspend the Executive from his duties on full pay
with full
entitlement to all other benefits to which he is entitled under this
Agreement for so long as the Board and/or CEO shall consider necessary
in
order to facilitate a proper investigation of such complaint and
during
such period of suspension:-
|
| 15.1.1 |
without
prejudice to Clause 4
(duties of the Executive) the Company shall be under no obligation
to
provide any work for the Executive and shall be entitled to appoint
any
other person or persons to perform the Executive's duties under this
Agreement whether on a temporary or a permanent
basis;
|
| 15.1.2 |
the
Company may forbid the Executive to enter any Company or Group Company
premises or to contact any employees, officers, customers, clients,
agents
or suppliers of the Company or any Group Company without its prior
consent
such consent not to be unreasonably
withheld;
|
-
15
-
| 15.1.3 |
the
Executive shall, at the request of the Board, immediately deliver
to the
Company all or any property in his possession or control which belongs
to
the Company or any Group Company or which relates to the business
of the
Company or any Group Company, including without limitation all items
mentioned in Clause 14.4
save for the avoidance of doubt, nothing in this Clause shall require
the
Executive to return his Company car until the termination of the
Employment;
and
|
| 15.1.4 |
the
Executive shall continue to be bound by all the Executive's obligations
under this Agreement insofar as they are compatible with the Executive
being suspended from duties, including without limit the Executive's
duty
of good faith and the Executive's duties under Clause 4.5
(Executive not to be employed in any other
business).
|
| 15.2 |
The
Company's normal disciplinary (which cover decisions regarding dismissal)
and grievance procedures apply to the Executive's employment with
such
modifications as the Company may deem to be necessary to take account
of
the Executive's seniority. The said disciplinary and grievance procedures
shall not have contractual effect and the Company shall not therefore
be
obliged to follow the procedures or any part thereof in whole or
in part
at any stage of the Employment.
|
| 15.3 |
If
the Executive is dissatisfied with any disciplinary decision taken
against
him (including a decision to dismiss him) or if the Executive seeks
redress for any grievance relating to the Employment he should raise
the
issue in writing with the CEO. Full details of how to go about this
and
the steps that follow such application are set out in the Company's
disciplinary and grievance
procedures.
|
| 16. |
DIRECTORSHIPS
AND SHAREHOLDINGS
|
| 16.1 |
During
the Employment the Executive will not do anything which could cause
him to
be disqualified from continuing to act as a director of the Company
or any
Group Company.
|
| 16.2 |
The
Executive shall not resign his office as a director of the Company
or any
Group Company without the agreement of the Company.
|
| 16.3 |
The
Executive shall, at the written request of the
Board:-
|
| 16.3.1 |
immediately
resign (without claim for compensation) from all and any directorships
and
other offices held in the Company and any Group Company and from
any other
appointments or offices which he holds as nominee or representative
of the
Company and any Group Company; and
|
| 16.3.2 |
transfer
without payment as the Company may direct any qualifying shares held
by
the Executive in accordance with the Articles of Association of the
Company and/or any Group Company
|
-
16
-
and
in
the event of his failure to do so within 7 days of the said request the
Executive hereby irrevocably authorises any director of the Company for the
time
being in his name and on his behalf to execute any documents or do anything
else
that is necessary to effect such resignations and/or transfers. For the
avoidance of doubt, the Board may make a request in accordance with this Clause
at any time, including, but not limited to, in circumstances where the Executive
is on garden leave pursuant to clause 3.4,
is in
receipt of benefits under the PHI Scheme pursuant to Clause 11,
has
been suspended from the Employment pursuant to clause 15.1
or where
the Employment has terminated for any reason.
| 16.4 |
If
during the Employment the Executive shall cease to be a director
of the
Company or any other Group Company (otherwise than for a reason justifying
summary dismissal pursuant to Clause 14.2.6)
the Company may by written notice terminate the Employment or
alternatively, at the discretion of the Company, the Employment shall
continue as if the Executive had been employed as an Executive Manager
and, irrespective of any provisions of the Articles, the terms of
this
Agreement (save those relating to the holding of the office of director)
shall continue in full force and
effect.
|
| 17. |
CONFIDENTIAL
INFORMATION
|
| 17.1 |
The
Executive is aware that in the course of the Employment he will have
access to and be entrusted with information in respect of the business
and
finances of the Company and its dealings, transactions and affairs
and
likewise in relation to any Group Company all of which information
is or
may be Confidential Information. Accordingly the Executive gives
the
undertakings set out in this Clause 17
to
the Company for itself and for the benefit of and as trustee for
any Group
Company.
|
| 17.2 |
The
Executive shall not during the Employment or afterwards use, exploit
(except for the benefit of the Group) or divulge to any third party
by any
means any Confidential Information except he shall be permitted to
do
so:-
|
| 17.2.1 |
when
necessary in the proper performance of the duties of the
Employment;
|
| 17.2.2 |
with
the express written consent of the Board;
or
|
| 17.2.3 |
where
this is required by law.
|
| 17.3 |
The
Executive shall, during the Employment, use his best endeavours to
prevent
the unauthorised use or disclosure of any Confidential Information
whether
by any other officer, employee or agent of the Group or otherwise
and
shall be under an obligation promptly and freely to report to the
Board
and the CEO any such unauthorised use or disclosure which comes to
his
knowledge.
|
| 17.4 |
The
Executive shall not, during the Employment or at any time thereafter
make,
except for the benefit of the Company or any Group Company, any copy,
record, or memorandum (whether recorded in writing, on computer disk
or
tape or otherwise) of any Confidential Information and any such copy
record or memorandum made by the Executive during the Employment
shall be
and remain the property of the Company and accordingly shall be returned
by the Executive to the Company at any time during or after the Employment
at the request of the Board or the
CEO.
|
-
17
-
| 17.5 |
In
this Agreement "Confidential
Information"
means:-
|
| 17.5.1 |
all
information which relates to the business, finances, transactions,
affairs, products, services, processes, equipment or activities of
the
Company and any other Group Company which is designated by the Company
or
any Group Company as confidential; and
|
| 17.5.2 |
all
information relating to such matters which comes to the knowledge
of the
Executive in the course of the Employment and which, by reason of
its
character and/or the manner of its coming to his knowledge, is evidently
confidential; and
|
| 17.5.3 |
all
information which relates to the business, finances, transactions,
affairs, products, processes, equipment or activities of actual or
potential clients, customers, suppliers or other persons which has
been
given to the Company or any Group Company in
confidence
|
provided
that information shall not be, or shall cease to be, Confidential Information
if
and to the extent that it comes to be in the public domain otherwise than as
a
result of the unauthorised act or default of the Executive.
| 17.6 |
Nothing
in this Clause 17
shall prevent the Executive from disclosing information which he
is
entitled to disclose under the Public Xxxxxxxx Xxxxxxxxxx Xxx 0000
provided that the disclosure is made in the appropriate way to an
appropriate person having regard to the provisions of the Act and
he has
first complied with the Company's procedures relating to such
disclosures.
|
| 17.7 |
This
Clause is without prejudice to the Executive's obligations under
Clause 20
(data protection).
|
| 18. |
POST
TERMINATION COVENANTS
|
| 18.1 |
For
the purposes of this Clause the following words and expressions shall
have
the following meanings:-
|
|
18.1.1
|
"Business"
|
the
business or businesses of the Company or any other Group Company
in or
with which the Executive has been involved or concerned outside the
UK at
any time during the period of 12 months prior to the Termination
Date
|
-
18
-
|
18.1.2
|
"directly
or
indirectly"
|
the
Executive acting either alone and on his own behalf or jointly with
or on
behalf of any other person, firm or company, whether as principal,
partner, manager, employee, contractor, director, consultant, investor
or
otherwise
|
|
18.1.3
|
"Key
Personnel"
|
any
person who is at the Termination Date or was at any time during the
period
of 12 months prior to the Termination Date employed or engaged as a
consultant in the Business in an executive or senior managerial capacity
and with whom the Executive has had dealings other than in a de minimis
way during the course of the Employment
|
|
18.1.4
|
"Prospective
Customer"
|
any
person, firm or company which has been engaged in negotiations, with
which
the Executive has been personally involved, with the Company or any
Group
Company with a view to purchasing goods and services from the Company
or
any Group Company outside the UK during the period of 6 months prior
to the Termination Date
|
|
18.1.5
|
"Relevant
Area"
|
Europe
|
|
18.1.6
|
"Relevant
Customer"
|
any
person, firm or company which at any time during the 12 months prior
to the Termination Date was a customer of the Company or any Group
Company
outside the UK, with whom or which the Executive dealt directly other
than
in a de minimis way or for whom or which the Executive was responsible
in
a supervisory or managerial capacity on behalf of the Company or
any Group
Company at any time during the said period
|
|
18.1.7
|
"Relevant
Goods and Services"
|
any
goods and services competitive with those supplied by the Company
or any
Group Company outside the UK at any time during the 12 months prior
to the Termination Date in the supply of which the Executive was
directly
involved or concerned at any time during the said period
|
-
19
-
|
18.1.8
|
"Relevant
Period"
|
the
period of the Employment and, for the purposes of Clause 18.2,
the period of 6 months from the Termination Date and, for the purposes
of
Clauses 18.3
and 18.4,
the period of 12 months from the Termination Date except that any
period
of garden leave served by the Executive pursuant to Clause 3.4
shall reduce the Relevant Period accordingly
|
|
18.1.9
|
"Relevant
Supplier"
|
any
person, firm or company which at any time during the 12 months prior
to the Termination Date was a supplier of any goods or services (other
than utilities and goods or services supplied for administrative
purposes)
to the Company or any Group Company outside the UK and with whom
or which
the Executive had personal dealings during the Employment other than
in a
de minimis way
|
|
18.1.10
|
"Termination
Date"
|
the
date on which the Employment shall terminate
|
| 18.2 |
Without
prejudice to Clause 4.5
(Executive not to be employed in any other business) the Executive
shall
not without the prior written consent of the CEO directly or indirectly
at
any time within the Relevant Period engage or be concerned or interested
in any business within the Relevant Area which (a) competes or (b)
will at
any time during the Relevant Period compete with the Business.
|
| 18.3 |
The
Executive shall not, other than during the Employment in the ordinary
and
proper course of his duties and for the benefit of the Company, without
the prior written consent of the CEO directly or indirectly at any
time
within the Relevant Period:
|
| 18.3.1 |
solicit
the custom of; or
|
| 18.3.2 |
facilitate
the solicitation of; or
|
| 18.3.3 |
deal
with
|
any
Relevant Customer in respect of any Relevant Goods and Services; or
| 18.3.4 |
solicit
the custom of; or
|
| 18.3.5 |
facilitate
the solicitation of; or
|
| 18.3.6 |
deal
with
|
-
20
-
any
Prospective Customer in respect of any Relevant Goods and Services;
or
| 18.3.7 |
interfere;
or
|
| 18.3.8 |
endeavour
to interfere
|
with
the
continuance of supplies to the Company and/or any other Group Company (or the
terms relating to those supplies) by any Relevant Supplier.
| 18.4 |
The
Executive shall not without the prior written consent of the CEO
directly
or indirectly at any time during the Relevant
Period:-
|
| 18.4.1 |
entice
away from the Company or any other Group Company;
or
|
| 18.4.2 |
endeavour
to entice away from the Company or any other Group
Company
|
any
Key
Personnel.
| 18.5 |
The
Executive acknowledges that because of the nature of his duties and
the
particular responsibilities arising as a result of such duties he
has or
will have knowledge of Confidential Information and is therefore
in a
position to harm the goodwill and interests of the Company and any
Group
Companies ("the
Interests")
if he were to make use of such Confidential Information for his own
purposes or the purposes of another. Accordingly, having regard to
the
above, the Executive acknowledges that the provisions of this Clause
are
fair, reasonable and necessary to protect the Interests. Whilst the
provisions of this Clause 18
have been framed with a view to ensuring that the Interests are adequately
protected taking account of the Group's legitimate expectations of
the
future development of the business, it is acknowledged by the Executive
that the business may change over time and as a result it may become
necessary to amend the provisions of this Clause 18
in
order to ensure that the Interests remain adequately protected. The
Executive, therefore, agrees that the Company shall be entitled to
amend
the provisions of this Clause 18
in
order to protect the Interests.
|
| 18.6 |
The
Executive acknowledges that the provisions of this
Clause 18
shall constitute severable undertakings given to the Company for
itself
and for the benefit of and as trustee for each of the other Group
Companies and the said undertakings may be enforced by the Company
on its
own behalf and on behalf of any of the Group
Companies.
|
| 18.7 |
Each
of the obligations in this Clause 18
is
an entire separate and independent restriction on the Executive.
If any
part is found to be invalid or unenforceable the remainder will remain
valid and enforceable.
|
| 18.8 |
If
any of the restrictions or obligations contained in this
Clause 18
is
held not to be valid on the basis that it exceeds what is reasonable
for
the protection of the goodwill and interests of the Company and any
Group
Company but would be valid if part of the wording were deleted then
such
restrictions or obligations shall apply with such deletions as may
be
necessary to make it enforceable.
|
| 18.9 |
The
Executive acknowledges and agrees that he shall be obliged to draw
the
provisions of this Clause 18
to
the attention of any third party who may at any time before or after
the
termination of the Employment offer to employ or engage the Executive
in
any capacity and for whom or with whom the Executive intends to work
during the Relevant Period.
|
-
21
-
| 18.10 |
The
Executive shall, at the request and cost of the Company, enter into
a
direct agreement or undertaking with any other Group Company to which
the
Executive provides services whereby he will accept restrictions
corresponding to the restrictions in this Clause (or such of them
as may
be appropriate in the circumstances) as the Company may require in
the
circumstances.
|
| 18.11 |
The
Executive agrees that if the Company transfers all or any part of
its
business to a third party ("the
Transferee"),
the restrictions contained in this Clause 18
shall, with effect from the date that the Executive becomes an employee
of
the Transferee, apply to the Executive as if references to the Company
include the Transferee and references to any Group Company include
any
Group Company of the Transferee.
|
| 19. |
INTELLECTUAL
PROPERTY
|
| 19.1 |
If
during the course of his Employment the Executive alone or with others
(including without limitation those others who are under his direction)
makes, discovers, develops, or directs the discovery of any Invention
he
shall promptly disclose it to the Board giving full particulars of
it
including all necessary drawings, know how, models, specifications
or
other material related to the Invention, and the Executive agrees
and
acknowledges that:-
|
| 19.1.1 |
because
of the nature of his duties and the responsibilities arising from
them he
has a special obligation to further the interests of the Company
so that
all Inventions made, discovered, developed, or directed by the Executive
in the performance of his duties or as a result of any special project
for
the Company outside the scope of his normal duties and all rights
in such
Inventions shall belong to the Company and the Executive acknowledges
that
at the date of this Agreement he does not have any facilities for
making
Inventions other than those provided by the Company or any Group
Company
under this Agreement; and
|
| 19.1.2 |
the
provisions of this sub-clause:-
|
| (a) |
shall
not entitle the Executive to any compensation beyond the salary to
which
he is entitled under Clause 7
of
this Agreement except that nothing in this Agreement excludes or
restricts
any rights which the Executive may have to claim additional compensation
by virtue of section 40 of the Patents Xxx 0000, in the case of any
Invention in relation to which a British patent has been granted,
and in
relation to which the Company has derived outstanding benefit from
such
Invention and/or the patent for it;
and
|
| (b) |
shall
not restrict the Executive's rights under sections 39 to 43 of
the Patents Xxx 0000.
|
| 19.2 |
The
Executive hereby waives all and any moral rights (as defined in
Chapter IV of the Copyright Designs and Patents
Act 1988).
|
-
22
-
| 19.3 |
The
Executive shall, at the cost of the Company and on demand, execute
all
such documents and do all such other acts as the Company shall require
to
enable the Company or its nominee to obtain the full benefit of any
Invention (and all the rights therein) or Intellectual Property Rights
in
any Material to which the Company is entitled and to secure (in the
case
of all registered Intellectual Property Rights) such registration
or
similar protection in any part of the world as the Company may consider
appropriate.
|
| 19.4 |
The
Executive shall, for a period not exceeding 5 years from the date of
termination of this Agreement give to the Company, or any successor
in
title there from, such assistance as the Company may require (in
its
absolute discretion) in connection with any dispute or threatened
dispute
directly or indirectly relating to any Invention or Intellectual
Property
Right in any Material or any associated right or registration or
other
protection in respect thereof (including but not limited to the execution
of documents, the swearing of any declarations or oaths, the providing
of
information and the participation in any proceedings before any Court
or
tribunal).
|
| 19.5 |
The
Executive shall not disclose to any other Person without the consent
of
the Company being previously obtained (which if given may be subject
to
conditions) the details of any Invention or
Material.
|
| 19.6 |
The
Executive hereby irrevocably appoints the Company to be his attorney
in
his name and on his behalf to execute or sign all such documents
and to do
all such acts as may be necessary or desirable to give effect to
this
Clause 19.
|
| 19.7 |
If
the Executive shall during the Employment make or discover any Invention,
or write, originate, produce, devise, conceive, create, develop or
direct
any Material (whether alone or with others (including without limitation
those others who are under his direction) and whether in the performance
of his duties or as a result of any special project for the Company
outside the scope of his normal duties), in which despite the previous
provisions of this Clause, any Intellectual Property Rights (including
any
patents) belong to the Executive and not the Company then the Executive
shall if so required by the Board:-
|
| 19.7.1 |
assign
such rights to the Company or its nominee;
and
|
| 19.7.2 |
until
such rights shall be fully and absolutely vested in the Company shall
hold
the same as trustee for the
Company.
|
| 19.8 |
Decisions
as to the patenting and exploitation of any Invention shall be at
the sole
discretion of the Company and the Company shall not be under any
obligation to take any step or register any patent or other right
in
respect of, or to develop or exploit, any Invention or Material
discovered, written, originated, produced, devised, conceived, created,
developed or directed by the
Executive.
|
| 19.9 |
Nothing
in this Clause shall be taken to limit or derogate from the obligations
of
the Executive under Clause 17
(confidential information).
|
-
23
-
| 20. |
DATA
PROTECTION
|
| 20.1 |
The
Executive shall at all times during the Employment act in accordance
with
the Data Protection Act 1998 ("xxx
0000 Xxx")
and shall comply with any policy introduced by the Company from time
to
time to comply with the 1998 Act. Breach of this undertaking will
constitute a serious disciplinary
offence.
|
| 20.2 |
The
Executive agrees to provide the Company in its capacity as Data Controller
with all Personal Data relating to him which is necessary or reasonably
required for the proper performance of this Agreement, the administration
of the employment relationship (both during and after the Employment)
or
the conduct of the Company's business or where such provision is
required
by law ("the
Authorised Purposes").
|
| 20.3 |
The
Executive explicitly consents to the Company or any Group Company
processing his Personal Data, including his Sensitive Personal Data,
where
this is necessary or reasonably required to achieve one or more of
the
Authorised Purposes (including without limitation any self-certification
forms or medical certificates supplied to the Company to explain
the
Executive's absence by reason of illness or injury, any records of
sickness absence, any medical reports or health assessments and any
information relating to any criminal convictions or any criminal
charges
secured or brought against him).
|
| 20.4 |
The
Executive acknowledges that the Company may, from time to time collect
or
disclose his Personal Data (including his Sensitive Personal Data)
from
and to third parties (including without limitation the Executive's
referees, any management consultants or computer maintenance companies
engaged by the Company, the Company's professional advisers, other
Group
Companies and any potential purchasers of the business). The Executive
consents to such collection and disclosure even where this involves
the
transfer of such data outside the European Economic Area where this
is
necessary or reasonably required to achieve one or more of the Authorised
Purposes or is in the interests of the Company and/or its
shareholders.
|
| 20.5 |
The
Company agrees to process any Personal Data made available to it
by the
Executive in accordance with the provisions of the
1998 Act.
|
| 20.6 |
In
this Clause "Data
Controller"
"Personal
Data"
"processing"
and "Sensitive
Personal Data"
shall have the meaning set out in sections 1 and 2 of the
1998 Act.
|
| 21. |
THIRD
PARTY RIGHTS
|
| 21.1 |
The
Company and the Executive agree that no term of this Agreement (including
the terms of any documents incorporated either expressly or by implication
into this Agreement) shall be enforceable by a Third Party in his
own
right by virtue of section 1(1) of the Contracts (Rights of Third
Parties) Xxx 0000 and for the avoidance of doubt this Agreement may
be rescinded or varied in whole or in part by agreement between the
Company and the Executive without the consent of any such Third
Party.
|
-
24
-
| 21.2 |
For
the purposes of this Clause a "Third
Party"
means any person who is not named as a party to this
Agreement.
|
| 22. |
PREVIOUS
AGREEMENTS
|
| 22.1 |
This
Agreement constitutes the entire understanding between the parties
with
respect to its subject matter and, with the exception of the UK Agreement,
supersedes all previous agreements and undertakings (if any) relating
to
the employment of the Executive by the Company or any Group
Company.
|
| 22.2 |
The
Executive acknowledges that he has not been induced to enter into
this
Agreement by any representation, warranty or undertaking not expressly
incorporated into it. The Executive agrees and acknowledges that
his only
rights and remedies in relation to any representation, warranty or
undertaking made or given in connection with this Agreement (unless
such
representation, warranty or undertaking was made fraudulently) will
be for
breach of the terms of this Agreement, to the exclusion of all other
rights and remedies (including those in tort or arising under statute).
|
| 23. |
NOTICES
|
| 23.1 |
Any
notice to be given under this Agreement by either party shall be
in
writing and if given by the Company shall be signed by a Director
(other
than the Executive) or some other duly authorised officer or agent
of the
Company and if given by the Executive shall be signed by
him.
|
| 23.2 |
Any
notice to the Company shall be served at the address of its registered
office for the time being. A copy of any notice to the Company shall
also
be delivered to the General Counsel of Interface, Inc., to its registered
office for the time being. Such notice and the copy may be delivered
by
hand or sent by first class recorded delivery
post.
|
| 23.3 |
Any
notice to the Executive shall be served on him in person or at his
last
known private address in the United Kingdom and may be delivered
by hand
to that address or sent by first class recorded delivery
post.
|
| 24. |
LAW
AND JURISDICTION
|
| 24.1 |
This
Agreement is governed by and shall be construed in accordance with
English
law.
|
| 24.2 |
The
parties submit to the exclusive jurisdiction of the English courts
with
regard to any dispute or claim arising under this Agreement except
to the
extent that it is provided elsewhere in this Agreement that such
dispute
or claim should be resolved by any person acting as an
expert.
|
-
25
-
| 25. |
GENERAL
PROVISIONS
|
| 25.1 |
Any
amendment to this Agreement must be recorded in writing and signed
by the
parties to be effective.
|
| 25.2 |
The
complete or partial invalidity or unenforceability of any provision
of
this Agreement for any purpose shall in no way
affect:-
|
| 25.2.1 |
the
validity or enforceability of such provisions for any other
purpose;
|
| 25.2.2 |
the
remainder of such provisions; or
|
| 25.2.3 |
the
remaining provisions of this
Agreement.
|
| 25.3 |
No
waiver by the Company other than one made in writing by resolution
of the
Board of any breach by the Executive of any provision of this Agreement
and no failure, delay or forbearance by the Company in exercising
any of
its rights shall be taken to be a waiver of such breach or right
or shall
prevent the Company from later taking any action or making any claim
in
respect of such breach or right.
|
| 25.4 |
The
parties agree that they have negotiated the terms of this Agreement
on an
equal footing and that accordingly the contra proferentem rule shall
not
apply to the interpretation of this
Agreement.
|
| 25.5 |
This
Agreement may be executed in counterparts which together shall constitute
one Agreement. Either party may enter into this Agreement by executing
a
counterpart and this Agreement shall not take effect until it has
been
executed by both parties. Delivery of an executed counterpart of
a
signature page by facsimile shall take effect as delivery of an executed
counterpart of this Agreement provided that the relevant party shall
give
the other the original counterpart (including such signature page)
as soon
as reasonably practicable thereafter.
|
EXECUTED
AS A DEED
by the
parties on the date which first appears in this Deed.
-
26
-
APPENDIX 1
[TO
BE PRINTED ON IEL HEADED PAPER]
Dear
Xxxxxxx
IOM
residency and your pension arrangements
This
letter is to confirm the position with regard to your pension arrangements
on
your move to the Isle of Man (IOM).
As
set
out in your IOM service agreement and your UK service agreement you are entitled
to be a member of the pension scheme made available to you by Interface Europe
Limited (the "Company")
from
time to time. Presently that means you may remain a member of the Readicut
Section of the Interface Europe Pension Scheme operated by the Company, and
of
which you are currently a member, as at the date of this Letter (the
"Scheme")
subject to the rules of the Scheme from time to time in force.
You
shall
continue to accrue benefits on the same basis as at present, namely as an
Executive Member of the Readicut Section, until such time as your membership
ceases in accordance with the Scheme rules.
For
the
purposes of Pensionable Service under the Scheme, the service under the IOM
service agreement and the UK service agreement shall be aggregated so that
the
two periods of service shall together make up your Pensionable Service under
the
Scheme, so that your Pensionable Service will be calculated on a full time
basis
for the period under which you are employed pursuant to both the IOM service
agreement and the UK service agreement.
Your
Pensionable Service under the new service agreements shall be continuous with
the Pensionable Service already accrued in the Scheme.
Your
Pensionable Salary for the purposes of the Scheme will be calculated in
accordance with the rules of the Scheme but using as your salary the aggregate
amounts payable under both your IOM service agreement and your UK service
agreement. Your pensionable salary will be capped as at present, with only
that
part of your Pensionable Salary below the 'Permitted Maximum' being taken into
account (in accordance with the Registered Pension Schemes (Modification of
the
Rules of Existing Schemes) Regulations 2006, but without limitation to the
transitional period as defined in those regulations). Your
salary under the UK service agreement will count first towards your Pensionable
Salary, with the salary under the IOM service agreement added in afterwards,
up
to the level of the 'Permitted Maximum' cap.
As
part
of your salary will now be paid under the IOM agreement, only that part of
your
contributions to the Scheme which relates to the UK service agreement will
qualify for tax relief under the UK tax regime. You are taking your own tax
advice with regard to the relocation to the Isle of Man, and we therefore leave
you to confirm the tax position for your own personal position.
Your
benefits from the Scheme will be paid into a single UK bank account in Sterling,
and the trustees of the Scheme will deduct any appropriate taxes or charges
in
accordance with the Scheme rules and all applicable tax
legislation.
The
provisions relating to the Scheme, including transfer entitlements and
preservation will continue to be governed by English law.
Yours
sincerely
/s/
Simon Xxxxxxx
X
Xxxxxxx
Company
Secretary
-
27
-
SCHEDULE
1
STATEMENT
OF TERMS AND CONDITIONS
(Clause 1.8)
The
following information is given to supplement the information given in the body
of the Agreement and to comply with the requirements of section 1 of the
Employment Rights Act 1996:-
| 1. |
There
are no collective agreements which directly affect the terms and
conditions of the Employment.
|
|
SIGNED
as
a Deed
(but
not delivered until dated) by
Xxxxxxx
Xxxxxxx
in
the presence of:-
Signature
of witness: /s/ X. Xxxxxxx
Name
of witness: Xxxxxx Xxxxxxx
Address: Old
School House
Waxey
Isle of Xxxx
IM4 7HZ
Occupation: Housewife
|
)
)
)
)
|
/s/
Xxxxxxx X. Xxxxxxx
|
|
EXECUTED
as
a Deed (but not delivered
until
dated) by Interface
Europe Ltd
acting
by two Directors or a Director
and
the Secretary:-
|
)
)
)
)
)
|
||
|
Director
/s/ Xxx Xxxxxxxxx
Secretary
/s/ X. Xxxxxxx
|
|||
