EXHIBIT 10.18
DATE 16 NOVEMBER 1995
----------------------
XXXXX XXXXXXXX HOLDINGS LIMITED
IAN XXXXX XXXXXXXX
SERVICE AGREEMENT
Macfarlanes
00 Xxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
JRSD/519336/0681797.01
24 March 1998
Draft 1
CONTENTS
CLAUSE PAGE
1 Definitions and Interpretation 1
2 Appointment 4
3 Duties 5
4 Remuneration and Expenses 5
5 Place of Work 8
6 Hours of Work 9
7 Holidays 9
8 Illness 9
9 Confidentiality 11
10 Conflicts of Interest 12
11 Intellectual Property 13
12 Termination 14
13 Termination of Directorship and Group Reconstruction 17
14 Action to be taken upon Termination 17
15 Restrictions following Termination 18
16 Statutory Requirements 21
17 General 22
18 Notices 22
19 Governing Law and Jurisdiction 23
SERVICE AGREEMENT
DATE 16 November 1995
PARTIES
1 XXXXX XXXXXXXX HOLDINGS LIMITED (Registered No. 3114683) whose
registered office is at Xxxxxxxxx Xxxxx, Xxxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxx XX0 0XX ("the Company")
2 IAN XXXXX XXXXXXXX of 00 Xx Xxxxx'x Xxxxxx, Xxxxxx X0 0XX ("the
Employee")
AGREEMENT
1 DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following words and expressions shall have the
following meanings:-
THE BOARD: the Board of directors of the Company or any Committee of
the Board duly appointed by it;
CLIENT: any person, concern, undertaking, firm or body corporate or
any division, branch or establishment within any such entity
responsible for any particular product, service or brand which at any
time during the period of 12 months immediately preceding the
Termination Date was a customer or client of the Company or any Group
Company or to whom the Company has in the three months preceding the
Termination Date made a pitch or presentation or other such offer or
request to provide services (which has not been finally refused or
rejected by the Client) and on or for whose account or business the
Employee personally worked or was responsible or in relation to whom
or whose products services business or plans the Employee shall have
obtained Confidential Information during the periods preceding the
Termination Date referred to above;
THE COMMENCEMENT DATE: the date hereof;
COMPETITOR: any person, concern, undertaking, firm or body corporate
which is engaged in or carries on within any part of the Restricted
Territories any business which competes with any business of a kind
carried on by the Company or by any Group Company at the Termination
Date in which the Employee has been involved to a material extent on
behalf of the Company or any Group Company at any time within the 12
months immediately preceding the Termination Date;
CONFIDENTIAL INFORMATION: all and any information not in the public
domain (or which comes into the public domain as a result of
unauthorised disclosure by the Employee or by any other person who
owes the Company or any Group Company an obligation of confidentiality
in respect of the information disclosed) concerning the business
and/or finances of the Company or any Group Company or any partners or
joint venturers of the Company or any Group Company or any Client or
Supplier, including, without prejudice to the generality of the
foregoing: trade secrets; customer/client lists, contact details of
Clients and Suppliers and individuals within Clients and Suppliers;
technical information, know how, research and development; financial
projections, targets details and accounts; fee levels, pricing
policies, commissions and commission charges; budgets, forecasts,
reports, interpretations, records and corporate and business plans;
planned products and services; marketing and advertising plans,
requirements and materials; marketing surveys and research reports
and market share and pricing statistics; and computer software and
passwords;
DOCUMENTS: any document, disc, memory device, notebook, tape or other
medium whether or not eye-readable on which any information may from
time to time be recorded;
GROUP COMPANY: any company which is from time to time a holding
company (as defined by Section 736 Companies Act 1985 (as amended by
the Companies Act 1989)) of the Company, a subsidiary (as so defined)
of the Company or a subsidiary (as so defined) of a holding company
(as so defined) of the Company;
THE GROUP: the Company and all Group Companies;
2
INVENTION: any discovery, invention, secret process, improvement in
procedure, trade xxxx, design or copyright work made, discovered or
produced by the Employee in the course of his employment and which is
in connection with or in any way affecting or relating to the business
of the Company or any Group Company or capable of being used or
adapted for use in connection with the business of the Company or any
Group Company;
THE RESTRICTED TERRITORIES: any country in which the Group carries on
any part of its business, or in which it has provided services to
clients, being countries in which the Employee has to a material
extent direct or indirect dealings with clients or prospective clients
of the Company or any Group Company or in which he has to a material
extent been involved in market research on behalf of the Company or
any Group Company because of his duties hereunder during the period of
12 months preceding the Termination Date;
SUPPLIER: any person, concern, undertaking, firm or body corporate or
any readily identifiable division within any concern, undertaking,
firm or body corporate which at any time during the period of 12
months immediately preceding the Termination Date was a supplier to or
the introducer of a prospective customer or clients to the Company or
any Group Company and with which the Employee was involved personally
in dealings or negotiations on behalf of the Company or any Group
Company at any time during that period of 12 months immediately
preceding the termination date; and
TERMINATION DATE: the date on which the Employee's employment under
this Agreement is terminated.
1.2 In this Agreement (unless the context requires otherwise):-
1.2.1 any reference to any statute or statutory provision shall be construed
as including a reference to any modification, re-enactment or
extension of such statute or statutory provision for the time being in
force or to any subordinate legislation made under the same;
3
1.2.2 the singular includes a reference to the plural and vice versa;
1.2.3 any reference to a Clause is to a Clause of this Agreement; and
1.2.4 "directly or indirectly" shall (without prejudice to the generality of
the expression) mean either alone or jointly with any other person,
firm or body corporate and whether on his own account or in
partnership with another or others or as the holder of any interest in
or as officer, employee or agent of or consultant to any other person,
firm or body corporate.
1.3 The headings contained in this Agreement are for the purposes of
convenience only and do not form part of and shall not affect the
construction of this Agreement or any part of it.
2 APPOINTMENT
2.1 The Company appoints the Employee and the Employee agrees to serve the
Company as Chairman subject to the terms and conditions of this
Agreement.
2.2 The appointment of the Employee shall (subject to the provisions of
Clause 12) be for an initial fixed period of two years from the
Commencement Date and shall continue thereafter unless and until
terminated by either party giving to the other not less than six
months' notice in writing expiring on the second anniversary of the
Commencement Date or at any time thereafter.
2.3 The Employee warrants that by entering into these or any other
arrangements made or to be made between the Company or any Group
Company and him he will not be in breach of any express or implied
terms of any contract with or other obligation to any third party
binding on him, including without limitation the provisions of any
restrictive covenants or confidentiality obligations, arising out of
any employment with any other employer or former employer.
4
3 DUTIES
3.1 The Employee shall perform during his employment such duties and
exercise such powers in relation to the business of the Company or of
any Group Company as may from time to time be assigned to or vested in
him by the Board and shall at all times and in all respects conform to
and comply with the reasonable directions of and regulations made by
the Board. The Employee shall perform such services for any Group
Company (without further remuneration except as set out in this
Agreement) and shall accept such offices in any such companies as the
Board may require.
3.2 The Employee shall during his employment well and faithfully serve the
Company and the Group Companies and use his best endeavours to
promote, develop and extend their businesses and interests and shall
devote substantially all of his working time and attention to the
duties of his office.
3.3 The Employee shall carry out his duties and exercise his powers
jointly with any other person appointed by the Board to act jointly
with him.
4 REMUNERATION AND EXPENSES
4.1.1 The Company shall pay to the Employee by way of remuneration for his
services under this Agreement a salary at the rate of ONE HUNDRED AND
SEVENTY FIVE THOUSAND POUNDS ((Pounds)175,000) per annum.
4.1.2 Such salary shall be:-
4.1.2.1 payable by equal monthly instalments in arrears on the day
appointed by the Board for the payment of employees'
salaries or pro rata where the Employee is only employed
hereunder during part of a month;
4.1.2.2 reviewed by the Board annually in June of each year and
shall be increased by an amount not less than the increase
in the retail prices index for the period under review.
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4.1.2.3 the Employee shall not be entitled to any director's or
other fees from the Company or any Group Company in respect
of any office he may hold with the Company or as nominee or
representative of the Company or any Group Company and
accordingly either the Employee shall pay over or procure to
be paid over to the Company all such fees received or
receivable by him or his remuneration shall be reduced pro
tanto;
4.2 The Company shall reimburse the Employee for all reasonable
travelling, hotel and other out-of-pocket expenses which are properly
and necessarily incurred by him in or about the performance of his
duties and for which receipts or other supporting documents (if so
required) are provided to the reasonable satisfaction of the Board.
4.3 In addition to the salary payable pursuant to Clause 4.1, the Employee
shall be entitled to a bonus calculated in the manner set out in the
Schedule hereto.
4.4 The Company shall provide and maintain (including the costs of
servicing, taxing, insuring and fuelling the same) two motor cars one
of which shall be a used BMW 750i or its equivalent and one of which
shall be of a value of not more than (Pounds)20,000 ("the Second Car")
for the use of the Employee for the performance of his duties, such
cars to be changed from time to time in accordance with the Company's
policy regarding replacement cars. The Employee may at his option in
each calendar year elect to receive a cash sum equivalent to 30% of
the value of the Second Car to which he may be entitled from time to
time, instead of his entitlement to the Second Car. The Employee shall
be at liberty to use the cars for his private purposes but shall:-
4.4.1 take good care of the cars and procure that the provisions and
conditions of any policy of insurance relating to the cars are
observed;
4.4.2 comply with any directions from time to time given by the Company with
regard to the cars provided by the Company for the use of its staff;
6
4.4.3 The Employee agrees and acknowledges that his entitlement to the
provision and use of the car subsists only so long as he continues to
be employed and shall return the car to the Company immediately upon
the termination of his employment under this Agreement. The Employee
shall not be entitled to retain the car as a purported set-off or
otherwise against any claim by the Employee for damages from the
Company.
4.4.4 If for any reason the Employee is disqualified from driving, the
Employee shall if the Company in its absolute discretion so determines
cease to be entitled to the use of the car during the period of
disqualification. The Employee shall upon demand return the car to the
Company and shall not be entitled to any compensation or payment in
lieu in this respect nor shall this action constitute a breach of
contract.
4.5 The Company shall provide the Employee with a telephone fitted to each
of the cars and shall be responsible for all outgoings in respect of
such telephones. In addition the Employee is required to install and
keep installed a telephone and fax machine in his home to enable him
to perform his duties and the Company shall be responsible for all
outgoings in respect of this telephone and fax line.
4.6 The Employee and his spouse and children under 18 years of age shall
be entitled to participate in any private health care insurance scheme
providing benefits for medical and surgical treatment which the
Company may from time to time maintain (subject always to the rules of
such scheme).
4.7 The Employee shall be entitled to participate in any scheme of
Permanent Health and Disability Insurance which the Company may from
time to time maintain (subject always to the rules of such scheme).
4.8 The Company shall during the Employee's employment under this
Agreement arrange and pay the premiums of a life insurance scheme or
policy which provides for payment to the Employee's nominated
dependents of a sum equal to the aggregate of (Pounds)500,000 plus
four times the basic salary payable to the Employee under Clause 4.1
as at the date of his death together with a pension payable to his
spouse equal to two-thirds of the pension to which the Employee
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would have been entitled pursuant to the pension scheme referred to in
Clause 4.9.1.
4.9.1 The Employee shall be entitled to continue as a member of Xxxxx
Xxxxxxxx Limited pension scheme ("the Scheme") (subject to the rules
of the Scheme).
4.9.2 Provided that, and for so long as, the Employee shall continue as a
member of the Scheme (or any other similar scheme established by the
Company or the Group in replacement of the Scheme for the purpose of
providing pension benefits to employees) the Company shall procure
that the pension benefits to which the Employee shall be entitled
shall be calculated and paid as if those benefits were not subject to
the limitation on remuneration imposed by Section 590C of the Income
and Corporation Taxes Act 1988 (or any statutory modification or
reenactment thereof, and as amended from time to time). If and to the
extent that the Company is not permitted by law to provide those
benefits through the Scheme, the Company shall make such other
arrangements as it considers appropriate, whether by a funded or by an
unfunded unapproved arrangement, at its sole option. The pension
benefits referred to in this paragraph shall be based on the
Employee's basic salary only, and not upon any other element of his
remuneration or benefits.
4.9.3 If the Company in breach of this Agreement terminates the Employee's
employment prior to the expiry of the fixed term referred to in Clause
2.2 or without due notice the Company shall (subject to any limits
imposed by law) ensure that the actuarial value of the pension
benefits to which the Employee is entitled shall be equal to the
amount which it would have been if the employment had been terminated
at the earliest date permitted by this Agreement.
5 PLACE OF WORK
The Employee shall perform his duties at any place within the United
Kingdom as the Board may require from time to time for the proper
performance and exercise of his duties and powers and he may be
required to travel abroad on the business of the Company or any Group
Company.
8
6 HOURS OF WORK
There are no normal hours of work applicable to the Employee but the
Employee shall conform to such hours of work as may from time to time
reasonably be required of him and in any event he shall work such
hours as may be necessary for the proper performance of his duties.
The Employee shall not be entitled to receive any additional
remuneration for work outside his normal hours.
7 HOLIDAYS
7.1 In addition to the usual bank and other public holidays, the Employee
shall be entitled without loss of remuneration to six weeks' holiday
in each calendar year to be taken at such time or times as may be
approved by the Board. Any entitlement to holiday remaining at the end
of any calendar year shall lapse without entitlement to payment in
lieu thereof.
7.2 On the expiration or termination of this Agreement, the Employee shall
be entitled to holiday pay in respect of holiday accrued pro rata to
the number of complete months of service during the calendar year of
termination less holiday actually taken.
8 ILLNESS
8.1 The Employee shall continue to be paid during absence due to any
illness, accident or other incapacity (such payment to be inclusive of
any statutory sick pay or social security benefits to which he may be
entitled) for a total of up to 26 weeks. Thereafter, for a further
period of 26 weeks of absence due to illness accident or other
incapacity the Employee shall receive half the normal remuneration
payable to him under this Agreement (inclusive of any statutory sick
pay or social security benefits to which he may be entitled) subject
always to the provisions of Clause 12.1.2.
8.2 Immediately following the Employee's return to work after a period of
absence of seven days or less which, or any part of which, has not
previously been authorised by the Company, the Employee shall on
request by the Company
9
complete a self-certification form in such form as the Company may
require stating the date of, and the reason for, the Employee's
absence, including details of sickness on non-working days, as this
information is required by the Company for calculating statutory sick
pay entitlement. Self-certification forms will be retained in the
Company's records.
8.3 For periods of absence of more than seven consecutive days, the
Employee shall, if so required by the Company, produce a doctor's
certificate verifying that any absence from work is due to accident or
ill-health and in default such absence shall be deemed to be
unjustified.
8.4 The Employee may be required at the reasonable request of the Company
during the course of his employment to attend a doctor or clinic
nominated by the Company for the purpose of a comprehensive medical
examination to determine his fitness for continued employment and
shall co-operate in ensuring the prompt delivery of the relative
report to the Company.
8.5 If the illness, accident or other incapacity shall be or appear to be
occasioned by actionable negligence of a third party in respect of
which damages are or may be recoverable, the Employee shall
immediately notify the Board of that fact and of any claim,
compromise, settlement or judgment made or awarded in connection with
it, shall give to the Board all particulars the Board may reasonably
require and shall, if required by the Board, refund all or such part
of the sums paid to or for the benefit of the Employee by way of
salary, bonus or benefit during the relevant period as the Board may
reasonably determine provided that the amount to be refunded shall not
exceed the amount of damages or compensation and interest thereon
recovered by the Employee less any costs borne by the Employee in
connection with the recovery of such damages or compensation and shall
not exceed the total remuneration paid to him by way of salary, bonus
and benefits in respect of the period of such illness, accident or
other incapacity.
9 CONFIDENTIALITY
9.1 Except in so far as is required for the proper performance of his
duties or as expressly authorised by the Company the Employee shall at
all times before and
10
after the Termination Date use his best endeavours to prevent the
publication, disclosure or unauthorised use of any Confidential
Information.
9.2 Except in so far as is required for the proper performance of his
duties or as expressly authorised by the Company the Employee shall
not at any time before or after the Termination Date:-
9.2.1 communicate or divulge to any person, concern, undertaking, firm or
body corporate or make any use of any Confidential Information which
he shall have come to know or have received or obtained at any time by
reason of or in connection with his service with the Company or any
Group Company;
9.2.2 copy or reproduce in any form or by or on any medium or device or
allow others access to or to copy or reproduce any Documents
containing any Confidential Information;
9.2.3 remove from the Company's or any Group Company's premises any
Documents containing any Confidential Information.
9.3 The Employee shall not be restricted from disclosing (but only to the
proper recipient) any Confidential Information which the Employee is
required to disclose by law or any order of a court of competent
jurisdiction or any relevant regulatory body of competent
jurisdiction, provided that the Employee shall, unless prevented by
law from so doing, have given prior written notice to the Company of
the requirement and of the information to be disclosed and allowed the
Company a reasonable opportunity to apply to the relevant Court or
body or prevent disclosure before the Employee makes it; and
9.4 The Employee acknowledges that all Documents containing or referring
to Confidential Information at any time in the Employee's control or
possession are and shall at all times remain the absolute property of
the Company and the Employee undertakes both during his employment and
after the Termination Date:
11
9.4.1 to exercise all due care and diligence to avoid any unauthorised
publication disclosure or use of any Confidential Information and any
Documents containing or referring to it;
9.4.2 whenever requested by the Company, to deliver up any Confidential
Information (including all Documents and all copies of Documents
whether or not lawfully made or obtained) or (at the Company's option)
to delete Confidential Information from any re-usable medium; and
9.4.3 to do such things and sign such documents at the expense of the
Company as shall be reasonably necessary to give effect to Clause 9.4
and/or to provide evidence that Clause 9.4 has been complied with.
9.5 The Employee agrees that the restrictions set out in Clause 9 are
without prejudice to any other duties of confidentiality owed to the
Company whether express or implied and will remain in force after
termination of the employment.
10 CONFLICTS OF INTEREST
10.1 The Employee shall not without the previous written consent of the
Board during the course of his employment:-
10.1.1 directly or indirectly engage or be interested in any other business
undertaking or activity which would or might reasonably be expected to
compete or conflict with the business or interests for the time being
of the Company or any Group Company; or
10.1.2 directly or indirectly engage or be interested in any other business
undertaking or activity which would or might reasonably require him to
disclose any Confidential Information in breach of this Agreement;
10.1.3 directly or indirectly engage in or be interested in any business
other than that of the Company and the Group in a manner or to an
extent which would or might materially affect his performance of his
duties as a Director of the Company and
12
other Group Companies or his performance of his obligations under this
Agreement;
10.1.4 hold any directorship of any company
save that he may (but without prejudice to Clause 9) be interested as
a holder or beneficial owner solely for investment purposes of less
than five per cent. of any securities of any company (other than a
Competitor) whose securities are listed or quoted on any recognised
investment exchange in the United Kingdom.
11 INTELLECTUAL PROPERTY
11.1 The Employee shall immediately disclose any Invention to the Company
and the Invention shall belong to and be the absolute property of the
Company or such Group Company as the Company may nominate for the
purpose.
11.2 The Employee shall, at the request and expense of the Company (or its
nominee), (whether during or after the termination of this Agreement)
apply or join in applying for patents, trade marks or other equivalent
protection in the United Kingdom or any other part of the world for
any Invention and complete all instruments and do all things necessary
for vesting patents, trade marks or other equivalent protection when
obtained and all right, title and interest to and in the same in the
Company (or its nominee) absolutely and as sole beneficial owner. The
Employee hereby irrevocably appoints the Company to be his attorney in
his name and on his behalf to complete any such instrument or do any
such thing and generally to use his name for the purpose of giving to
the Company (or its nominee) the full benefit of the provisions of
this Clause.
11.3 Until such time as any Invention is fully vested in the Company
pursuant to Clause 11.2 the Employee shall hold all rights, title and
interest in the Invention in trust for the Company absolutely.
11.4 The Employee acknowledges and agrees that the Employee will not
(whether during or after his employment) apply or join in applying for
any patent,
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registered design, trade xxxx or other equivalent protection in
respect of any Invention without the prior written approval of the
Company.
11.5 The Employee hereby waives all moral rights as defined in Chapter IV
of Part I of the Copyright Designs and Patents Xxx 0000 in any works
produced during the period of his employment with the Company in which
Copyright is vested in the Company or any Group Company whether by
virtue of this Clause or otherwise.
11.6 The Employee further acknowledges that having regard in particular to
the nature of the business of the Company and the nature of the
Employee's skills, qualifications and expertise:-
11.6.1 the normal duties of the Employee include the making of Inventions and
Inventions may result from the carrying out by the Employee of his
duties; and
11.6.2 because of the nature of the Employee's duties referred to in this
Clause and the responsibilities arising from the nature of those
duties, the Employee has a special obligation to further the interests
of the Company's undertaking.
12 TERMINATION
12.1 The employment of the Employee may be terminated by the Company
without notice or payment in lieu of notice:-
12.1.1 if the Employee shall become of unsound mind or be or become a patient
under the Mental Health Xxx 0000;
12.1.2 if the Employee shall at any time be prevented by illness or accident
or other incapacity from properly performing his duties for a period
of three consecutive months or for more than 90 working days in any
consecutive 12 months except where such incapacity arises out of the
performance of his duties or where the Employee is entitled, during
his employment to benefit under any such scheme as is referred to in
Clause 4.7. In the event that any benefit is payable to the Employee
under such a scheme, the Company shall not for so long as such benefit
continues to be payable, terminate the employment of the Employee on
14
grounds of illness or incapacity, but any other remuneration payable
to the Employee under this Agreement shall be reduced by a sum equal
to the amount of such benefit as is paid under the said scheme;
12.1.3 if the Employee shall have committed either any serious breach or
(after warning) repeated or continued any material breach of his
obligations under this Agreement or persistently failed or neglected
to carry out his duties under this Agreement or failed to maintain a
satisfactory standard of conduct or performance within a reasonable
time after receiving written warning from the Board relating to the
Employee's conduct and/or performance;
12.1.4 if the Employee shall have been guilty of conduct (whether or not in
the course of his employment) tending to bring himself, the Company or
any Group Company into disrepute or otherwise to affect prejudicially
the interests of the Company or any Group Company;
12.1.5 if the Employee shall have committed an act of bankruptcy or
compounded with his creditors generally;
12.1.6 if the Employee is convicted of any criminal offence (excluding an
offence under the road traffic legislation in the United Kingdom or
elsewhere in respect of which a custodial sentence is not imposed on
the Employee);
12.1.7 if the Employee shall be or become prohibited by law from being a
director of any company; or
12.1.8 if for any reason the Employee shall (otherwise than at the request of
the Company) resign as a director of the Company.
12.2 If a disciplinary matter arises involving the Employee, the Employee
may be suspended on such terms and conditions as the Board of
Directors may reasonably determine provided that the Employee's salary
and benefits shall not be reduced or withheld.
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12.3 The employment of the Employee may be terminated by either party
giving to the other notice in accordance with Clause 2.2 above.
12.4 Notwithstanding any other provisions, the employment of the Employee
shall automatically terminate when the Employee reaches his retirement
date on his 65th birthday.
12.5 The termination by the Company of the Employee's employment shall be
without prejudice to any claim which the Company may have for damages
arising from any breach by the Employee giving rise to such
termination.
12.6 In the event that either party gives notice to terminate the
employment the Employee agrees:-
12.6.1 that for a period not exceeding the period of notice in Clause 2.2
above the Board may in its absolute discretion require the Employee to
perform only such duties as it may allocate to him or not to perform
any of his duties and may require him not to have any contact with
Clients of the Company or any Group Company nor any contact (other
than purely social contact) with such employees of the Company and any
Group Company as the Board shall determine and/or may exclude him from
any premises of the Company or of any Group Company (without providing
any reason therefor); and
12.6.2 that such action taken on the part of the Company shall not constitute
a breach of this Agreement of any kind whatsoever nor shall the
Employee have any claim against the Company in respect of any such
action;
PROVIDED ALWAYS that throughout the period of any such action the
Employee's salary and contractual benefits shall not cease to be paid
or provided (unless and until his employment shall be terminated).
12.7 The Company may elect to terminate the contract immediately and make a
payment in lieu of the remainder of the fixed term of this Agreement
or any applicable period of notice. The Employee is required to
mitigate his loss where he is dismissed and any payment in lieu of
notice may be reduced to take account
16
of mitigation and to take account of the payment or any part of it
being paid earlier than the salary or benefits to which he would
otherwise be entitled under this Agreement.
12.8 If the Employee fails to make himself available for work during any
period of notice of termination of the Employee's employment, other
than at the request of the Company pursuant to clause 12.6 or with the
permission of the Board, the Employee shall not be entitled to any
payment of salary or to any benefits in respect of such absence.
13 TERMINATION OF DIRECTORSHIP AND GROUP RECONSTRUCTION
13.1 If for any reason the Employee shall either:-
13.1.1 resign as a director of the Company; or
13.1.2 be removed from office as a director of the Company
then his employment shall automatically terminate but without
prejudice to any claim which either party may have against the other
in respect of such termination or any breach of contract or duty
giving rise to it.
13.2 If before the expiration or termination of this Agreement, the
employment of the Employee shall be terminated by reason of the
liquidation of the Company for the purpose of reconstruction or
amalgamation and he shall be offered employment with any concern or
undertaking resulting from such reconstruction or amalgamation on
terms and conditions no less favourable (financially and in personal
status) than the terms then the Employee shall have no claim against
the Company in respect of the termination of his employment for such
reason.
14 ACTION TO BE TAKEN UPON TERMINATION
Upon the Termination Date:-
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14.1 the Employee shall forthwith resign without claim for compensation for
loss of office (but without prejudice to any claim he may have against
the Company arising out of any breach of this Agreement by the
Company) from such offices held by him in the Company and any of the
Group Companies and from any other offices he may hold as nominee or
representative of the Company or any Group Company and, should he fail
to do so, the Company is hereby irrevocably authorised to appoint some
person in his name and on his behalf to sign any documents and do any
things necessary or requisite to give effect to such resignations; and
14.2 the Employee shall immediately deliver to the Company all Documents
and copies of Documents (whether or not lawfully obtained), keys,
security passes, telephones, faxes, cars, credit cards and other
property of the Company or any Group Company or any of their
respective customers or clients in his possession or under his control
and the Employee shall not retain any copies of the Company's
Documents and the Employee shall at the Company's request delete all
Confidential Information from any re-usable medium.
15 RESTRICTIONS FOLLOWING TERMINATION
15.1 The Employee acknowledges that during the course of his employment
under this Agreement he will be privy to Confidential Information and
he will make maintain and develop personal knowledge of, influence
over and valuable personal contacts with Clients, Suppliers, staff and
third parties. He therefore covenants with the Company that save with
the previous express written consent of the Company he will not in the
Restricted Territories for the period of two years following the
Termination Date directly or indirectly on his own behalf or on behalf
of any other person, concern, undertaking, firm or body corporate:-
15.1.1 deal with in competition with the Company, seek employment or
engagement with, be employed or engaged by or engage in business with
or be in any way interested in or connected with any Competitor;
15.1.2 deal with, seek employment or engagement with, be employed or engaged
by or engage in business with or work on any account or business of
any Client for the
18
purpose of providing to that Client services which are the same as or
similar to those which he has been involved in providing to that
Client in the 12 months preceding the Termination Date;
15.1.3 solicit or endeavour to entice away business from any Client for the
purpose of providing to that Client services which are the same as or
similar to those which he has been involved in providing to that
Client in the 12 months preceding the Termination Date;
15.1.4 interfere or seek to interfere with contractual or other trade
relations between the Company or any Group Company and any of its or
their Suppliers;
15.1.5 solicit or endeavour to entice away from the Company or any Group
Company any employee, officer or consultant of the Company or any
Group Company known personally to the Employee other than secretarial,
clerical or junior employees (whether or not such person would commit
any breach of his contract of employment or engagement by reason of
leaving the service of such company or knowingly employ, assist in or
procure the employment by any other person, concern, undertaking, firm
or body corporate of any such person;
15.1.6 communicate to any person, concern, undertaking, firm or body
corporate anything which is intended to or which will or may damage
the reputation or good standing of the Company or any Group Company;
15.2 The Employee will not at any time following the Termination Date, save
with the previous express written consent of the Company, represent
himself as being in any way connected with or interested in the
business of the Company or any Group Company.
15.3 In the event that the Company requires the Employee not to perform any
of his duties and/or exclude the Employee from the Company's premises
("garden leave") as set out in Clause 12.6 above for some or all of
any period of notice, the period of the post termination restrictions
set out in Clause 15 will be reduced by the length of the garden leave
served prior to the Termination Date.
19
15.4 The Employee agrees that the restrictions contained in Clauses 15.1
and 15.2 are reasonable and necessary for the protection of the
legitimate interests of the Company and the Group Companies and that,
having regard to those interests, those restrictions do not work
harshly on him. It is nevertheless agreed that if any of those
restrictions shall taken together or separately be held to be void or
ineffective for any reason but would be held to be valid and effective
if part of its wording were deleted, or the period or area of
application reduced, that restriction shall apply with such deletions
as may be necessary to make it valid and effective. The Employee
further acknowledges that the restrictions contained in Clauses 15.1
and 15.2 shall apply in relation to all Customers and Suppliers
notwithstanding that such Customers and Suppliers may have been
introduced to the Company or any Group Company by the Employee before
or during his employment with the Company.
15.5 The restrictions contained in each sub-clause of Clause 15.1 shall be
construed as separate and individual restrictions and shall each be
capable of being severed without prejudice to the other restrictions
or to the remaining provisions.
15.6 If the Company transfers all or any part of its business to a third
party ("the transferee") the restrictions contained in this Clause
shall with effect from the Employee becoming an employee of the
transferee apply to the Employee as if references to the Company
include the transferee and references to any Group Company were
construed accordingly and as if references to customers, Clients or
Suppliers were to, Clients or Suppliers of the Company and/or the
transferee and their respective Group Companies.
15.7 The Employee hereby agrees that he will at the request and cost of the
Company enter into a direct agreement or undertaking with any Group
Company whereby he will accept restrictions and provisions
corresponding to the restrictions and provisions contained in Clause
15 (or such of them as may be appropriate in the circumstances) in
relation to such services and such area and for such period as such
company or companies may reasonably require for the protection of its
or their legitimate interests.
20
15.8 Before accepting any offer of alternative employment the Employee
undertakes that he shall provide a copy of this Agreement to his
prospective new employer.
15.9 The restrictions set out in this Clause 15 are without prejudice to
other express or implied duties whether fiduciary or otherwise owed by
the Employee to the Company or any Group Company.
16 STATUTORY REQUIREMENTS
16.1 For the purpose of the Employment Protection (Consolidation) Xxx 0000
as amended, it is hereby further agreed and declared that:-
16.1.1 the Employee's previous employment with PCH Investments Limited
(formerly Xxxxx Xxxxxxxx Holdings Limited) and Xxxxx Xxxxxxxx Limited
shall count as part of his continuous employment with the Company
which therefore began on 10 September 1987;
16.1.2 a contracting out certificate is in force for the purposes of the
Social Security Xxxxxxxx Xxx 0000 in respect of the Employee.
16.2 Pursuant to the Wages Xxx 0000, the Employee authorises the Company to
deduct and to retain from any salary or other remuneration (including
without limitation any payment made to the Employee in lieu of notice)
accrued to him in consideration of his employment by the Company
(whether or not actually paid during the continuance of his
employment):-
16.2.1 any pension or other similar contribution owed by the Employee as a
consequence of the Employee's membership of the pension scheme
referred to in Clause 4.8 above; and
16.2.2 any sum due from the Employee to the Company or any Group Company.
21
17 GENERAL
17.1 This Agreement is in substitution for all previous contracts of
service or other arrangements relating to his employment between the
Employee and the Company or any Group Company, which shall be deemed
to have been terminated by mutual consent as from the Commencement
Date.
17.2 The expiry or termination of this Agreement shall not operate to
affect such of the provisions of this Agreement as are expressed to
remain in full force and effect notwithstanding such termination.
18 NOTICES
18.1 Any notice to be served in connection with and any notice or other
correspondence under or in connection shall be delivered:-
18.1.1 in the case of the Company, to its registered office for the time
being; and
18.1.2 in the case of the Employee, to his address given or to such other
address as may be notified by him
in writing or transmitted by facsimile or sent by first class pre-paid
mail or delivered by hand in each case to the address as set out
above.
18.2 Any such notice or correspondence shall be deemed to have been served
as follows:-
18.2.1 in the case of service by first class mail, on the third business day
after the day on which it was posted;
18.2.2 in the case of delivery or facsimile transmission (subject, in the
case of facsimile transmission, to oral confirmation of receipt of all
transmitted pages) on the day it is delivered or transmitted provided
that if that day is not a business day or, being a business day,
transmission delivery or takes place after 5.00 p.m., then at
22
9.00 a.m. on the first business day following delivery or transmission
of the notice.
18.3 Subject to Clause 18.2, in proving service by post or delivery it
shall be sufficient to prove that the notice or correspondence was
properly addressed and left at or posted to the place to which it was
so addressed.
18.4 In this Clause, "business day" means any day other than Saturday,
Sunday or any other day which is a public holiday in the place where
or to which the notice or correspondence is left or despatched.
19 GOVERNING LAW AND JURISDICTION
19.1 This Agreement shall be governed by and construed in accordance with
the Laws of England.
19.2 The parties to this Agreement submit to the exclusive jurisdiction of
the English Courts as regards any claim, dispute or matter arising out
of or relating to this Agreement.
EXECUTED as a deed and delivered on the date set out at the head of this
Agreement.
23
SCHEDULE
BONUS ARRANGEMENTS
The bonus payable to the Employee in respect of each financial year shall be
determined by reference to the matters set out below:-
1 For each financial year of the Company the Employee shall be paid by
way of bonus up to 50% of the basic salary paid pursuant to Clause
4.1.1 hereof in the event that there has been substantial progress
towards achieving the Company's and the Group's strategic objectives
and, in particular, in the event that the Company has achieved its
performance relative to the budget for the financial year in question.
Such bonus shall be pro rated by reference to the proportion of the
financial year during which the Employee is employed. Such bonus shall
be paid in the event the Board shall unanimously resolve that it
should be paid.
2 For each financial year of the Company, the Employee shall be paid by
way of an additional bonus up to 25% of the basic salary payable
pursuant to Clause 4.1.1 hereof in the event that the Board shall
unanimously resolve that such additional bonus should be paid to the
Appointee as a result of the exceptional performance of the Company
during the financial year in question.
24
SIGNED as a Deed by XXXXX )
XXXXXXXX HOLDINGS LIMITED )
acting by )
and )
Director
/Secretary /s/ Xxxxxxx Xxxxx
----------------------------
SIGNED as a Deed by IAN )
XXXXX XXXXXXXX in the ) /s/ Xxx X. Xxxxxxxx
presence of:- ) ----------------------------
25
DATED 24 NOVEMBER 1997
----------------------
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
XXXXX XXXXXXXX HOLDINGS LIMITED
XXX XXXXXXXX
________________________________
EMPLOYMENT AGREEMENT
________________________________
XXXXXX XXXXXXX & XXXXXX
Xxxxxx Xxxxx
Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: (0000) 000 0000
Fax: (0000) 000 0000
Telex: 8812247 HFWLON
THIS AGREEMENT is made 24 November 1997.
AMONG
(1) CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC., of 000 Xxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxxxxxxxxxx 00000, XXX ("Cambridge")
(2) XXX XXXXXXXX of 00 Xx. Xxxxx'x Xxxxxx, Xxxxxx X0 0XX ("the Executive").
(2) XXXXX XXXXXXXX HOLDINGS LIMITED, a company incorporated in England, whose
registered number is 03114683 ("PCH").
WHEREAS:
(A) Cambridge has acquired at least 95% of the share capital of PCH pursuant to
an offer dated 17 November 1997.
(B) It is a term of such acquisition that the Executive is appointed as an
Executive Vice President of Cambridge.
IT IS AGREED as follows:
1. Appointment as executive vice president
---------------------------------------
1.1 The Executive is hereby employed by Cambridge as an executive vice
president of Cambridge. As such he shall manage PCH and its subsidiary
companies and perform such duties as are reasonably assigned to him by the
Chief Executive Officer of Cambridge from time to time (whether they relate
to the business of Cambridge or to the business of PCH and any of its
subsidiaries). In addition, Executive, together with the other Executive
Vice President of Cambridge, who is also formerly a senior officer at PCH,
shall be responsible for the management of the management consulting
strategic business unit of Cambridge and its subsidiaries. The Executive
shall also serve as a member of the executive committee of senior officers
of Cambridge.
1.2 The Executive accepts such employment and agrees to render the services
described in this agreement and in the agreement dated 16 November 1995
between him and PCH ("the Agreement") and to devote his entire available
business time, effort, skill and attention to promote the best interests of
Cambridge and PCH and its subsidiaries. The Executive also agrees that the
remuneration and other benefits which he enjoys under the Agreement, as
modified by clause 4, shall cover his position as executive vice president
of Cambridge and he shall not be entitled to any additional consideration
for such employment.
1.3 In addition to the rights set out in the Agreement (as amended by this
agreement) the Executive shall be considered eligible to participate in any
other fringe benefits, benefit plans or related compensation
programs or plans such as the discretionary option or bonus plans of
Cambridge to the same extent as executive vice president levels of
employees in Cambridge. In that connection, the Executive shall be eligible
to receive an annual bonus commencing with the twelve month period ending
December 31, 1998 of up to 50% of the salary paid to him by PCH under the
Agreement, to be determined upon the same basis as executive vice president
level employees of Cambridge. All of the Executive's years of service with
PCH shall be deemed to be years of service with Cambridge or its
subsidiaries, as applicable, in determining the Executive's rights to
participate in such benefits, plans or programs.
2. Cessation of Office
-------------------
2.1 If the Executive's employment with PCH pursuant to the Agreement is
terminated for any reason, the Executive shall cease to be an Executive
Vice President of Cambridge contemporaneously with the termination of the
Agreement and shall not be entitled to any compensation as a result in
addition to that to which he may be entitled pursuant to the Agreement or
as a result of it being terminated.
3. Miscellaneous
-------------
3.1 All notices and other communications required or permitted to be given
under this agreement relating to the Executive's employment as an executive
vice president of Cambridge shall be in writing and shall be deemed to have
been duly given and delivered by hand, sent by overnight courier service or
facsimile transmission to the parties at the following addresses or to such
other address of a party if such party may have designated to the other any
prior notice given in accordance with this agreement:
(a) if to Cambridge to 000 Xxxxxx Xxxxxx, Xxxxxxxxxxxxx, 00000, XXX
attention Chief Financial Officer
with a copy to
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP
High Street Tower
000 Xxxx Xxxxxx
Xxxxxx, XX 00000, XXX
Attention: X. Xxxxxx Esq
(b) if to the Executive to:
00 Xx. Xxxxx'x Xxxxxx
Xxxxxx
X0 0XX
3.2 This agreement, together with the Agreement as varied by this agreement and
that certain Share and Option Purchase Agreement contemplated by the share
capital offer by Cambridge as described above, sets out the entire
agreement and understanding of the parties concerning the subject matter of
this
2.
agreement and supersedes any prior understanding and agreement relating to
the terms of the Executive's employment by PCH and by Cambridge.
3.3 This agreement may be amended, modified, superseded or canceled or the
terms or covenants of it may be waived only by a written instrument
specifically referring to this agreement and executed by Cambridge and the
Executive, or in the case of a waiver, by the party entitled to the benefit
of such provisions. The failure by a party hereto at any time or from time
to time to require performance of any obligations under this agreement
shall in no manner affect such party's right to enforce any provisions of
this agreement at a subsequent time; and the waiver by a party to this
agreement of any right arising out of any breach shall not be construed as
a waiver of any right arising out of any subsequent breach.
3.4 If any provision of this agreement (save for clause 4), or the application
thereof to any person or circumstance, should for any reason and to any
extent be invalid or unenforceable, the remainder of this agreement and the
application of such provision to other persons or circumstances shall not
be affected thereby, but rather shall be enforced to the greatest extent
permitted by the law. Moreover, if one or more of the provisions contained
in this agreement shall for any reason be held to be excessively broad as
to scope, activity, subject or otherwise so as to be unenforceable at law,
such provision or provisions shall be construed by the appropriate judicial
body by limiting or reducing it or them so as to be enforceable to the
maximum extent compatible with the applicable law as it shall then appear.
3.5 This agreement shall be governed by and construed in accordance with the
laws of England.
4. Variation of the Agreement
--------------------------
4.1 The Agreement shall be varied in the following respects:
(a) Clause 4.1.2.2 shall be amended to say:
"reviewed by the board of Cambridge annually in December for the
calendar year commencing the following January, the first such
review to take place in December, 1998".
(b) Clause 4.2 shall be amended by clarifying that the Executive is
entitled to travel Business or such similar Class on all flights
originating from and terminating in Europe and First or such similar
Class on all other international flights.
(c) Clause 4.3 (which confers an entitlement to a bonus calculated in the
manner set out in the Schedule to the Agreement) shall cease to apply.
(d) Clause 4.4 shall be varied by removing the right of the Executive to
two motor cars and
3.
replacing it with a right to be provided one motorcar which shall be a
used BMW 750i or its equivalent.
(e) Clause 4.5 shall be varied by deleting "each of the cars" in the
second line and replacing it with "the car".
(f) Clause 6 shall be varied by inserting at the end of the first sentence
after "the proper performance of his duties" the following:
"under this Agreement and under the agreement between the
Executive, Cambridge and PCH dated 24 November 1997.
4.2 The Executive acknowledges and agrees that, at the time of amending the
Agreement, there were no amounts due to him from PCH or its subsidiaries,
save for his accrued salary and any outstanding business expense
reimbursements.
4.3 In all other respects the agreement shall continue in full force and
effect.
IN WITNESS whereof the parties have signed this agreement.
/s/ Xxxxx X.X'Xxxx
------------------------
SIGNED by Xxxxx X. X'Xxxx
for and on behalf of Cambridge Technology Partners (Massachusetts), Inc.
/s/ Xxx Xxxxxxxx
-----------------------
SIGNED by XXX XXXXXXXX
/s/ Xxxxxxx Xxxx
-----------------------
SIGNED by Xxxxxxx Xxxx
for and on behalf of Xxxxx Xxxxxxxx Holdings Limited
4.
