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EXHIBIT 10.47
DATED 20TH FEBRUARY 1996
(1) SYLVANIA LIGHTING S.A
(2) XXXXXX XXXXXXX
(3) SYLVANIA LIGHTING INTERNATIONAL B.V.
(4) FLOWIL INTERNATIONAL LIGHTING (HOLDING) B.V.
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SECOND AMENDMENT
AGREEMENT
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Dibb Xxxxxx Xxxxxxxxx
000 Xxxxxx Xxxx
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Tel: 0000 00 00 00
Fax: 0000 000 0000
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SECOND AMENDMENT AGREEMENT
This second amendment agreement made the 20th day of February 1996 between
(1) SYLVANIA LIGHTING S.A., incorporated under the laws of Switzerland, whose
principal place of business is situated at 20 Route de Pre-Bois, 1215
Xxxxxx 00 (Xxxxxxx), Xxxxxxxxxxx (the "Company");
(2) XXXXXX XXXXXXX of Ash Green, Xxxxxxxxx Xxxxxxxx, Xxxxxxxx, Xxxxxxxx XX0 0XX
(the "Executive");
(3) SYLVANIA LIGHTING INTERNATIONAL B.V., a private limited liability company
incorporated under the laws of The Netherlands and established in
Amsterdam, The Netherlands, whose registered office is situated at
Xxxxxxxxxxx 000, 0000 XX, Xxxxxxxxx, XX Xxx 0000, 00000 XX, Xxxxxxxxx, Xxx
Xxxxxxxxxxx ("SLI"); and
(4) FLOWIL INTERNATIONAL LIGHTING (HOLDING) B.V., a private limited liability
company incorporated under the laws of The Netherlands whose registered
office is situated at "Atrium" Building, 2nd Floor, Strawinskylaan 3037,
1077 ZX, Amsterdam, The Netherlands ("Flowil")
amends in the following terms a Service Agreement dated 12 May 1993 (as amended
by an amendment agreement dated 22 March 1994) made between the Company and the
Executive (the "Agreement") and an Executive Director's Contract dated 12 May
1993 made between SLI and the Executive (the "SLI Executive Director's
Contract") and an Executive Director's Contract dated 12 May 1993 made between
Flowil and the Executive (the "Flowil Executive Director's Contract").
All capitalised terms used herein but not otherwise defined shall have the
meanings assigned to them in the Agreement.
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IT IS HEREBY AGREED AS FOLLOWS:
1. Clause 3 of the Agreement shall be deleted and replaced with the
following words:-
"3. TERM
3.1 The employment of the Executive (subject to termination as provided
below) shall commence on the Effective Date and save as provided
hereafter shall continue thereafter unless and until terminated by:-
3.1.1 the Executive giving to the Company not less than six months'
notice in writing to expire at any time; or
3.1.2 the Company giving to the Executive not less than twelve
months' notice in writing to expire at any time.
3.2 Subject to Clause 3.3, in the event that any company or company under
its control acquires after the date hereof, but before a Successful
Listing (as defined in Clause 3.4), such rights as make the Company,
SLI or Flowil a subsidiary (as defined by Section 736 of the Companies
Xxx 0000 as amended by the Companies Act 1989) of that company then
the Agreement shall continue unless and until terminated by:-
3.2.1 the Executive giving to the Company not less than twelve
months' notice in writing to expire at any time; or
3.2.2 the Executive giving notice of deemed immediate termination by
the Company in the circumstances described in Clause 14.4; or
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3.2.3 the Company terminating or giving notice pursuant to Clause
14.3.
3.3 The period of notice referred to in Clause 3.2 shall not apply in the
event of a Successful Listing (as defined in Clause 3.4), when the
provisions of Clause 3.1 shall apply.
3.4 For the purpose of this Agreement a Successful Listing means:-
3.4.1 the admission (or re-admission after suspension) of any
shares of the Company, SLI or Flowil or any holding company
(as defined in Section 736 of the Companies Xxx 0000 as
amended by the Companies Act 1989) of the Company, SLI or
Flowil which holds 100% of the Company's, SLI's or Flowil's
shares to the Official List of The London Stock Exchange
Limited or on the primary list of any recognised investment
exchange (as such term is used in the United Kingdom Financial
Services Act 1986) and such admission or re-admission becoming
effective; or
3.4.2 the granting (or the re-granting after suspension) of an
application by the Company, SLI or Flowil or any holding
company (as defined in Section 736 of the Companies Xxx 0000
as amended by the Companies Act 1989) of the Company, SLI or
Flowil which holds 100% of the Company's, SLI's or Flowil's
shares of permission to deal in any of its shares on The
Alternative Investment Market of The London Stock Exchange
Limited or on the secondary market of any recognised
investment exchange (as such term is used in the United
Kingdom
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Financial Services Act 1986) and such permission becoming
effective.
For the avoidance of doubt, the expression "re-admission after
suspension" and "re-granting after suspension" are to be read and
construed in the context of a reorganised investment exchange (other
than The London Stock Exchange Limited) as being references to the
nearest equivalent procedure by which listing or the grant of
permission to deal can be obtained in accordance with the rules of
such relevant recognised investment exchange."
2. There shall be inserted in the first line of Clause 11.1 after the word
"Board" the words "save as provided in Clause 14.7". There shall be
inserted in the second line of Clause 11.1 after the word "employment" the
words "howsoever or whensoever terminating".
3. Clauses 14.1.4 and 14.1.5 of the Agreement shall be deleted and replaced
with the following words:-
"14.1.4 if the Executive is guilty of any gross default or gross
misconduct in connection with or affecting the business of
any member of the Group to which he is required by this
Agreement to render services which the Executive:-
(a) fails to immediately on receipt of written notice by
the Company (the "Notice") to stop the action regarded
by the Company as constituting gross default or gross
misconduct; and
(b) fails within a reasonable time of the receipt of the
Notice to remedy or otherwise make good the action
regarded by
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the Company as constituting gross default or gross
misconduct; or
14.1.5 in the event of any material breach by the Executive of the
terms of this Agreement which the Executive fails within 30
days of written notice by the Company to remedy: for the
purposes of this sub-clause 14.1.5 only, a breach shall be a
"material breach" if the reputation, prospects or commercial
activities of any member of the Group and/or the Group as a
whole is materially adversely affected thereby; or"
4. Clause 14.3 of the Agreement shall be deleted and replaced with the
following words:-
"14.3 The Company hereby acknowledges that in the event that:-
14.3.1 any company or any company under its control acquires after
the date hereof, but before a Successful Listing (as defined
in Clause 3.4), such rights as make the Company, SLI or
Flowil a subsidiary (as defined by Section 736 of the
Companies Xxx 0000 as amended by the Companies Act 1989) of
that company; and
14.3.2 this Agreement is terminated
(i) with immediate effect, other than as a result of any of
the circumstances set out in Clause 14.1; or
(ii) by way of notice by the Company; or
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(iii) in the circumstances described in Clause 14.4; then
14.3.3 the Executive's employment with the Company shall cease from
the date of such termination or the giving of such notice
and in such event the parties shall release each other of
any notice period as to termination under this Agreement
insofar as it shall not require the Executive to work any
period of notice whatsoever and the Executive shall be
entitled to receive compensation within 24 hours of such
termination, to include without limitation payment in lieu
of statutory and contractual notice, on the termination of
this Agreement. Such compensation for loss of office shall
be calculated from the date of such termination for a
twenty-four month period free and clear of any set off or
other deductions whatsoever but subject to being paid net of
tax PROVIDED ALWAYS THAT such compensation shall be
calculated for each twelve month period for which
compensation is paid by reference to the remuneration paid
to the Executive by the Company in the most recently
completed twelve month financial year preceding such
termination to include, without limitation, all remuneration
paid by the Company to the Executive whether or not under
the terms of this Agreement and, other than discretionary
payments made to the Executive outside the terms of this
Agreement, such compensation for termination shall take into
account only
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those benefits referred to in Clauses 7, 8 and 9 of this
Agreement (comprising, for the avoidance of doubt, basic pay
and all bonuses whether they are contractual or
discretionary and all payments or allowances for or in lieu
of pensions, car and medical benefits) PROVIDED ALWAYS THAT
the Executive abides by Clauses 11, 13, 16 and 17 of this
Agreement, save as provided otherwise in Clause 14.7, and
without prejudice to the Company's right to claim for
further loss and damage for breach of such Clauses or such
other relief as it sees fit.
14.4 For the purposes of this Agreement, the SLI Executive Director's
Contract, the Flowil Executive Director's Contract and the Amendment
Agreement dated 22 March 1994, in the event that after the events
described in Clause 14.3.1 the Company unilaterally imposes a
variation of the Executive's duties or management powers (in
determining what constitutes a variation, reference shall be made to
the actual delegation of duties or powers in the period from
29 January 1993 to the date of the Executive's notice under this
Clause) then this Agreement shall be deemed terminated by the
Company pursuant to Clause 14.3.3 PROVIDED ALWAYS THAT the Executive
notifies the Company of his intention to rely on this Clause within
7 days of the said variation.
14.5 The Executive hereby acknowledges that in the event that this
Agreement is terminated by the Company at any time other than as a
result of any of the circumstances set out in Clause 14.1 the
compensation for termination payable to the
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Executive shall, other than discretionary payments made to the
Executive outside the terms of this Agreement, take into account
only those benefits referred to in Clauses 7, 8 and 9 of this
Agreement (comprising, for the avoidance of doubt, basic pay and all
bonuses whether they are contractual or discretionary and all
payments or allowances for or in lieu of pensions, car and medical
benefits).
14.6 The parties in entering into the provisions relating to compensation
in Clauses 14.3, 14.4 and 14.5 record their intention as being that
such compensation will be paid by way of liquidated damages and
having taken legal advice consider the damages to be a genuine
pre-estimate of loss to the Executive.
14.7 The compensation payments which in those circumstances set out in
this Clause 14 shall be made to the Executive shall be made by the
Company within 24 hours of termination of this Agreement by the
Company and shall be paid by telegraphic transfer into an account of
the Executive's nomination. In the event of non-payment in whole or
part of the compensation due to the Executive within such 24 hour
period:-
14.7.1 the Executive shall be entitled to charge the Company
interest on the sum unpaid from the due date until the
actual date of payment (as well after as before judgement)
at a rate equal to 2% per annum above the National
Westminster Bank Plc base rate for the period; and
14.7.2 the Executive shall be immediately released from all of his
obligations under
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Clause 11 (Secrets and Confidential Information), Clause 16
(Provisions after Termination) and Clause 17 (Restrictive
Covenants (as amended hereunder)) of this Agreement.
5. There shall be inserted in the first paragraph of Clause 16 after the words
"The Executive hereby agrees that he will not at any time after termination
of this Agreement" the words "howsoever or whensoever arising, save as
provided in Clause 14.7, "and there shall be inserted at the end of the
first paragraph after the words "...other persons directly or indirectly."
the words "for a period of twenty-four months after termination".
6. In consideration of the agreement of the Company to pay compensation
pursuant to Clause 14 the Executive has agreed to extend the period of
certain restrictions under the Agreement from twelve months to twenty-four
months following termination. Accordingly, there shall be deleted from the
first line of Clause 17.2 the words "12 months" and inserted in their
place the words "24 months" and there shall be inserted after the end of
the parenthesis in the second line of Clause 17.2 the words "save as
provided in Clause 14.7". There shall be added the following sub-clauses
to Clause 17:-
"17.3 For the period of twenty-four months after ceasing to be employed
under this Agreement howsoever and whensoever terminating, save as
provided in Clause 14.7, either alone or jointly with, or as
manager, agent, consultant or employee of any person, firm or
company directly or indirectly solicit or endeavour to entice away
the custom of any person, firm or company who during the twelve
months prior to the termination of the Agreement was a customer or
potential customer of the Company and/or any company in the Group
and (in the case of the customer) from
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whom he had obtained business or to whom he had provided services on
behalf of the Company and/or any company in the Group or (in the
case of a potential customer) with whom he had dealt with a view to
obtaining business.
17.4 For the period of twenty-four months after ceasing to be employed
under this Agreement howsoever and whensoever terminating, save as
provided in Clause 14.7, either alone or jointly with, or as
manager, agent, consultant or employee of any person, firm or
company directly or indirectly deal with any person, firm or company
who during the twelve months prior to the termination of the
Agreement was a customer or potential customer of the Company and/or
any company within the Group and (in the case of the customer) from
whom he had obtained business or to whom he had provided services on
behalf of the Company and/or any company in the Group or (in the
case of a potential customer) with whom he had dealt with a view to
obtaining business.
17.5 The restrictions contained in this Clause are considered by the
parties to be reasonable in all the circumstances, save for in those
circumstances set out in Clause 14.7. Each sub-clause constitutes an
entirely separate and independent restriction and the duration,
extent and application of each of the restrictions are no greater
than is necessary for the protection of the interests of the Company
and any other company in the Group."
7. There shall be inserted at the end of Clause 19 the following:-
"In the event of disciplinary proceedings, any disciplinary decision will
be taken by the Board, or the Chairman if the Board so delegates."
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8. A new Clause 22 shall be incorporated into the Agreement as follows:-
"22. INDEMNITY
The Company will at all times and in all respects indemnify and keep
indemnified the Executive and his heirs, executors and
administrators and each of them from and against all losses,
damages, liabilities, actions, claims, costs or expenses of any kind
whatsoever which may be suffered, incurred or sustained by them or
by any of them and which may in any way arise out of or in
connection with:-
22.1 the appointment of the Executive as a director of the Company
or his tenure of such officer; or
22.2 any act done, concurred in or omitted to be done in good faith
by the Executive or by any other officer, servant or agent of
the Company in or about or in connection with the performance
by the Executive of any of his functions as a director of the
Company or the performance or purported performance by any
other such person of any of his functions as officer, servant
or agent of the Company (as the case may be) whether or not
the Executive or such other person was acting in the scope of
his authority, contract or employment at the time except any
loss, damage, liability, action, claim, cost or expense which
may result directly from the Executive's own bad faith
including, without limiting the generality of the foregoing,
the Executive's own wilful dishonesty or wilful default which
dishonesty or default constitutes or results directly in a
material breach of the terms of the
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appointment of the Executive as a director of the Company or
his tenure of such office."
9. The following Schedule shall be deemed to be incorporated into the
Agreement.
THE SCHEDULE
Written statement of main terms and conditions of employment as required by
Section 1 of the Employment Protection (Consolidation) Xxx 0000.
1. CONTINUOUS PERIOD OF EMPLOYMENT
The Executive's continuous period of employment began on 29 January
1993. No employment of the Executive with any previous employer counts
as part of the Executive's employment.
2. JOB TITLE
The job title of the Executive is Chief Executive Officer. His duties
will be in accordance with Clause 4.1 of this Agreement.
3. PLACE OF WORK
The Executive's place of work is in accordance with Clause 4.1 of this
Agreement.
4. REMUNERATION
See Clauses 7, 8 and 9 of this Agreement.
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5. HOURS OF WORK
The Executive shall work such hours as may be reasonably required for
the proper performance of his duties.
6. HOLIDAYS
See Clause 10 of this Agreement.
7. NOTICE PERIOD
See Clauses 3 and 14 of this Agreement.
8. SICK PAY
There are no other terms and conditions relating to incapacity for
work apart from those set out in Clause 15 of this Agreement.
9. RETIREMENT
The normal age of retirement is 65.
10. PENSIONS
See Clause 8 of this Agreement. No contracting out certificate is in
force.
11. GRIEVANCE PROCEDURE
See Clause 19 of this Agreement.
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12. DISCIPLINARY RULES
See Clause 19 of this Agreement.
There are no other disciplinary rules relating to the appointment of
the Executive other than those provided for in this Agreement.
13. MISCELLANEOUS
13.1 There are no collective agreements in force which affect the
terms and conditions of this Agreement.
13.2 The Executive will be required to work in the United Kingdom,
Holland and Switzerland at varying times and for varying
durations at the discretion of the Company and will be paid
his remuneration pursuant to Clauses 7, 8 as 9 in English
pounds sterling, to the extent that the remuneration pursuant
to those clauses is received in cash.
10. The deemed commencement date of this second amendment agreement shall
be 12 May 1995.
11. Except as provided in this second amendment agreement all other terms
and conditions set forth under the Agreement (as amended by an
amendment agreement dated 22 March 1994), the SLI Executive Director's
Contract and the Flowil Executive Director's Contract shall remain
unmodified and in full force and effect.
AS WITNESS the hand of the parties or their duly authorised
representatives, the day and year first above written.
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SIGNED By XXXXXX X. XXXXXXXX )
for and on behalf of: )
SYLVANIA LIGHTING S.A. )
in the presence of: )
Signature of Witness:
Name of Witness: M. Ch. METRAL
Address of Witness: Las Saphirs, 5
Ch. des Xxxxxx
F-74160 BOSSEY
Occupation: Secretary
SIGNED By XXXXXX XXXXXXXX )
in the presence of: )
Signature of Witness:
Name of Witness: H. BRAND
Address of Witness: 00, xxx Xxxxxx Xxxxxxxx
XX-0000 Xxxxxx
Occupation: Secretary
SIGNED By XXXX XXXXX & XXXXX XXX )
for and on behalf of: )
SYLVANIA LIGHTING )
INTERNATIONAL B.V. )
in the presence of: )
Signature of Witness:
Name of Witness: X.X. XXXXXXX
Address of Witness: 0 Xxxxx Xxxx Xxxxxxx Xx.
Xxxxxx X00XX
Occupation: Chartered Accountant
SIGNED By XXXX XXXXX & XXXXX XXX )
for and on behalf of: )
FLOWIL INTERNATIONAL )
LIGHTING (HOLDING) B.V. )
in the presence of: )
Signature of Witness:
Name of Witness: X.X. XXXXXXX
Address of Witness: 0 Xxxxx Xxxx Xxxxxxx Xx.
Xxxxxx X00XX
Occupation: Chartered Accountant
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