Exhibit 4.20
Dated 17 January 2003
TRAVELBAG PLC
and
XXXXX LlNEY
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SERVICE AGREEMENT
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Linklaters
Xxx Xxxx Xxxxxx
Xxxxxx XX0X 0XX
Telephone (00-00) 0000 0000
Facsimile (00-00) 0000 0000
Ref NIR
SERVICE AGREEMENT
DATE: 17 January 2003
PARTIES:
(1) Travelbag plc [ ] ("the Company") and
(2) Xxxxx Xxxxx of 00x Xxxx Xxxx, Xxxxxxx, Xxxxxxxxx, XX0 0XX ("the Executive")
1. Definitions and Interpretation
1.1 In this agreement the following words and expressions shall have the
following meanings respectively:
"Associated Company" any company 50% or less but more than 20%
of whose equity share capital (as defined
in Section 744 of the Companies Act 1985)
is owned by the Company (and or any of its
subsidiaries or its holding company) and
shall include any subsidiary of such
Associated Company;
"the Board" the board of Directors of the Company from
time to time or anyone or committee
nominated by the board of directors as its
representatives for the purposes of this
agreement;
"Completion" means completion as defined in the share
purchase agreement between the Vendors (as
defined in the share purchase agreement),
Xxxxx Xxxxxxx Xxxx, 3i Group Pic and
Ebookers Pic dated 16th January;
"Confidential Information" any trade secret or other information of a
confidential nature in whatever form
contained relating to any business of the
Company or any Group Company and including
but without limitation (i) lists and
details of customers and potential
customers of or suppliers and potential
suppliers to any of the said business;
(ii) processes or methods used or to be
used in any of those businesses; (Hi)
goods or services sold or supplied or
proposed to be sold or supplied by any of
those businesses including pricing
policies and standard terms of business;
(iv) any business method used in any of
those businesses; (v) business development
plans and future products ideas of any of
those businesses; and (vi) management of
accounts of the Company or any company in
the Group;
"Group" the Company, its ultimate holding company
from time to time and the Company's
associates (as defined in section 435 of
the Insolvency Act 1986) from time to
time;
"Group Company" means a member of the Group and "Group
Companies" will be interpreted
accordingly;
"Remuneration Committee" means the Remuneration Committee of
Ebookers Pic from time to time.
1.2 The headings and marginal headings to the clauses are for convenience
only and have no legal effect.
1.3 Any reference in this agreement to any Act or delegated legislation
includes any statutory modification or re-enactment of it or the
provision referred to.
2. Appointment and Duration
2.1 The terms of this agreement will come into force immediately after
Completion.
2.2 The Company appoints the Executive and the Executive agrees to act as Group
Managing Director of the division within the Company known as "Travel bag
Holdings" or in such other office as the Company may from time to time
direct. The Executive agrees and accepts that the Company may during the
continuance of his employment hereunder (including during his notice
period) at its reasonable discretion vary his powers and/or require him to
perform other duties or tasks not within the scope of his normal duties and
the Executive agrees to accept such variations and to perform those duties
and undertake those tasks and the Executive agrees that he shall have no
claims against the Company in respect of such variations or changes.
2.3 The Executive shall carry out his duties and exercise his powers jointly
with any other executive or appointee appointed by the Board to act jointly
with him (and the Board may at any time require the Executive to cease
performing or exercising the said or any duties or powers).
2.4 There are no normal working hours for the Executive's employment and the
Executive shall work at such times and for such periods as may be necessary
to properly fulfil his duties for which no additional payment will be made.
The Executive agrees that the performance of his duties pursuant to this
agreement may require him to work more than 48 hours per week. The
Executive may withdraw his consent to work more than 48 hours a week by
giving not less than 3 months' notice to the Board.
2.5 The appointment will be deemed to have commenced on 1 February 1999 and
shall continue, subject as hereinafter provided until terminated by the
Company giving the Executive or the Executive giving the Company 6 calendar
months' notice in writing such notice not to be given before 15 July 2003.
2.6 The Company may at its entire discretion make a payment of his salary in
lieu of any notice or part of any unexpired notice otherwise to be given by
the Company under sub-clause 2.4 above subject to deduction of such PAVE
tax and Class 1 National Insurance contributions as HM Inland Revenue may
require.
2.7 For the purpose of determining the Executive's continuous period of
employment pursuant to in clause 2.4 above. No employment of the Executive
by any previous employer counts as part of the Executive's continuous
employment.
2.8 The Executive's employment shall in any event terminate on the last day of
the month in which the Executive reaches the age of 65.
2.9 The Executive warrants that by virtue of entering into this agreement or
other agreements or arrangements made or to be made between the Company or
any Associated Company and him he will not be in breach of any express or
implied term of any contract or of any other obligation binding upon him.
3. Duties of Executive
3.1 The Executive shall:
3.1.1 devote the whole of his working time, attention and ability to
the duties of his appointment;
3.1.2 faithfully and diligently perform those duties and exercise
such powers consistent with them which are from time to time
assigned to or vested in him;
3.1.3 obey all lawful and reasonable directions of the Board;
3.1.4 use his best endeavours to promote the interests and protect
the reputation of the Company and the Group and not knowingly
do or willingly permit to be done anything to the prejudice,
loss or injury of the Company or any Group Company;
3.1.5 shall carry out his duties in a competent manner; and
3.1.6 carry out duties on behalf of any Group Company;
3.1.7 act as an officer of the Company and of any Group Company or
hold any other appointment or office as nominee or
representative of the Company or any Group Company and carry
out such duties and the duties attendant on any such
appointment as if they were duties to be performed by him on
behalf of the Company.
3.2 Garden Leave
Notwithstanding the provisions of clause 3.1 the Company shall be under no
obligation to vest in or assign to the Executive any powers or duties or to
provide any work for the Executive and the Company may at any time at the
Company's discretion and for any period of time not exceeding the notice
period or any unexpired period of the term referred to at clause 2.4
require that the Executive cease the performance of his duties and may also
require him:
3.2.1 to stay away from and not attend any premises of the Company or any Group
Company; and/or
3.2.2 not to contact or have any communication with any employees, officers,
customers or suppliers of the Company or any Group Company; and/or
3.2.3 to resign from the Board and the boards of any Group Company of which he
is a director;
in which case the other provisions of this agreement shall continue to
have full force and effect and the Executive's salary and other
contractual benefits shall not cease to be payable by reason only of that
cessation or exclusion of the Executive (unless and until his employment
under this agreement shall be determined under any provision of this
agreement). The Executive will not, without the prior written consent of
the Board, be employed or otherwise engaged in the conduct of any
activity, whether or not of a business nature during any period imposed by
the Company pursuant to clause 3.2. At the end of any such period the
Company may at its sole and absolute discretion pay the Executive salary
alone in lieu of the balance of any period of notice given by the Company
or the Executive (less any deductions the Company is required by law to
make).
3.3 The Executive shall at all times keep the Board (and, where appropriate
the board of directors of any other Group Company) promptly and fully
informed (in writing if so requested) of his conduct of the business,
finances or affairs of the Company or any other Group Company in a prompt
and timely manner and will provide such explanations as the Board may
require.
3.4 The Executive will promptly disclose to the Board full details of any
wrongdoing by any employee of any Group Company where that wrongdoing is
material to that employment by the relevant company or to the interests or
reputation of any Group Company.
3.5 The Company may with the Executive's consent (which he will not
unreasonably withhold or delay) second him to be employed by any Group
Company without prejudice to his rights under this agreement and the
provisions of this agreement shall apply mutatis mutandis.
3.6 The Executive's principal place of work shall be 0 Xxxxx Xxxx, Xxxxx,
Xxxxxxxxx XX00 0XX or such other location that is within a 50 mile radius
of the principal place of work as may be required by the Company from time
to time and he shall undertake any travel as may be necessary for the
proper performance of his duties.
3.7 The Executive shall not knowingly at any time make any untrue or misleading
statement in relation to the Company or any Group Company.
3.8 The Executive shall at all times comply with the Company's Disciplinary
Rules copies of which are available from the Company Secretary. If the
Executive has any grievance relating to his employment (other than one
relating to a disciplinary decision) he should refer such grievance to the
Chairman of the Company for resolution.
4. Remuneration
4.1 The Executive shall receive during the continuance of his appointment a
salary of (pound)214,000 per annum, such salary to accrue on a day-to-day
basis and to include any remuneration from any Group Company and to be
payable by credit transfer by equal monthly instalments in arrears on or
before the last working day of each calendar month. The Remuneration
Committee will undertake an annual review of the Executive's salary and the
Executive shall be entitled to such increases in salary, if any, as may be
determined at such reviews at the sole discretion of the Remuneration
Committee.
4.2 For the purposes of the Employment Rights Xxx 0000 and otherwise the
Executive hereby consents to the deduction from his salary of any sum owing
by the Executive to the Company at any time from his salary or any payment
or payments due from the Company to the Executive hereunder or otherwise
and the Executive hereby also agrees to make any payment to the Company of
any sums owed by the Executive to the Company upon demand by the Company at
any time.
4.3 Depending on the Executive's and the Company's quarterly performance a
quarterly related bonus payment may be made to the Executive. The
Remuneration Committee determines the bonus arrangements of the Executive.
Bonus payments are at the absolute discretion of the Company, save that the
Company shall act reasonably in its assessment of the Executive's
entitlement hereunder, in respect of the period for which the bonus is
payable, which shall be the previous quarter or such other period as may be
agreed from time to time (the 'Bonus Payment Period'). The amount of any
bonus payment awarded will depend on the achievement of quarterly
performance targets which the Company will notify to you and will not
exceed 40% of the Executive's salary for the Bonus Payment Period. The
Executive shall not be entitled to payment of any such bonus if his
employment with the Company has terminated howsoever caused or if the
Executive has served notice of termination on or before the bonus payment
date.
4.4 The Executive may also be entitled to participate in the Ebooker's
Executive Share Option Scheme, subject always to the rules of the scheme
applicable from time to time (and any replacement schemes provided by the
Company), and to the specific terms on which any options may be granted
under the rules of the scheme The Remuneration Committee shall in its sole
discretion determine the value of any share options granted to the
Executive from time to time.
4.5 The Executive will be entitled to participate in a stakeholder pension
scheme details of which will be provided on request.
5. Expenses
The Company shall reimburse to the Executive on a monthly basis all
travelling, hotel, entertainment and other expenses reasonably incurred by
him in the proper performance of his duties subject to the Executive
complying with such guidelines or regulations issued by the Company in this
respect and to the production to the Company of such receipts, vouchers or
other evidence of actual payment of the expenses as the Company may
reasonably require.
6. Holiday
In addition to all statutory holidays the Executive is entitled to 25 days'
paid holiday in every calendar year to be taken at such time or times as
are approved in advance by the Board. The Executive may not take more than
10 working days holiday consecutively without the prior permission of the
Board. Holidays may not be carried forward from one holiday year to the
next without the Board's prior approval. The Executive will not receive any
payment for any accrued but unused holiday entitlement. The Company's
holiday year runs from 1 January to 31 December. The Executive agrees that
the provisions of the Regulations is (1) to (4) inclusive of the Working
Time Regulations 1998 (dates on which leave is taken) do not apply to the
employment.
For the year during which his appointment commences or terminates, the
Executive is entitled to 2 working days' holiday for each calendar month
completed in the employment of the Company for that year. On the
termination of his appointment the Executive shall be entitled to pay in
lieu of outstanding holiday entitlement and shall be required to repay to
the Company any salary received for holiday taken in excess of his actual
entitlement. The basis for payment and/or repayment under this clause shall
be 1/253 of his annual basic salary for each day. The Company may also at
its absolute discretion require the Executive to take any outstanding
holiday entitlement during any period of notice.
7. Intellectual Property
7.1 If at any time during the continuance of this agreement the Executive
(whether alone or with any other person) in the course of his duties under
this agreement makes or discovers, or participates in the making or
discovery of any invention, development, discovery, improvement or process,
The Executive shall treat all information relating thereto as confidential
to the Company and/or the Group and shall promptly disclose to the chairman
of the Company full details, including drawings and models (if any) of such
invention, development, discovery, improvement or process. The property,
including all intellectual property rights in such invention, development,
discovery, improvement or process shall vest in the Company absolutely and
the provisions of Clause 8.5 shall apply.
7.2 If at any time during the continuance of this agreement the Executive
(whether alone or with any other person) in the course of his duties under
this agreement, creates any design or copyright work, whether or not
capable of registration, the Executive shall treat such design or copyright
work and all information relating thereto as confidential to the Company
and or the Group and shall promptly disclose to the chairman of the Company
full details, including drawings or models (if any) of such design or
copyright work. The property including all intellectual property rights in
such design or copyright work shall vest in the Company absolutely and the
provisions of Clauses 8.3 and 8.5 shall apply.
7.3 In consideration of the Company entering into this agreement, the Executive
hereby assigns to the Company (including, to the extent necessary, by way
of future assignment) all copyright and other intellectual property rights
for their full terms throughout the world in designs and copyright works,
whether or not capable of registration, which have been or will be created
by the Executive wholly outside his normally working hours and wholly
unconnected with his appointment) during the period of this agreement.
7.4 The Executive hereby irrevocably and unconditionally waives in favour of
the Company any and all moral rights conferred on him by virtue of the
Copyright Designs and Patents Xxx 0000 for any design or copyright work in
which copyright is vested in the Company.
7.5 Notwithstanding any prior termination of this agreement, at the request and
expense of the Company the Executive shall:
7.5.1 do all things necessary or desirable to enable the Company or its
nominee to confirm absolute title to and ownership of and to obtain
the benefit of the invention, development, discovery, improvement,
process, design or copyright work (as the case may be) and to secure
patent or other appropriate forms of protection for it throughout the
world;
7.5.2 provide to the Company all such assistance as the Company may require
in relation to the resolution of any questions concerning patent,
copyright or other intellectual property proprietary rights assigned
by virtue of this Clause 8;
and decisions as to the procuring of a patent or other appropriate
protection and exploitation shall be in the sole discretion of the Company.
7.6 The Executive irrevocably appoints the Company to be his attorney in his
name on his behalf to execute, sign and do all such deeds, instruments or
things and generally to use the Executive's name for the purpose of giving
to the Company or its nominee the full benefit of the provisions of Clause
8.2 and a certificate in writing signed by any Executive or the Secretary
of the Company that any instruments or act fails within the authority
hereby conferred shall be conclusive evidence that such is the case so far
as any third party is concerned.
8. Interests of Executive
8.1 The Executive shall not (except as a representative or nominee of the
Company or any Group Company or otherwise with the prior unanimous consent
in writing of all the members of the Board (which consent can be withdrawn
at anytime) be directly or indirectly engaged concerned or interested in
any other business of whatsoever nature provided that the Executive may
hold (directly or through nominees) up to one per cent of the issued
investments of any class of anyone company whose shares are listed or
quoted on a recognised investment exchange (within the meaning of the
Financial Services Act 1986) or in respect of which dealing takes place in
the Unlisted Securities Market and/or the Alternative Investment Market.
8.2 The Executive shall not (either within or outside his normal hours of work)
engage in or become involved with any public or private work or
organisation including (without limitation) any charity local government
council political party or club without the prior written consent of the
Board (which can be withdrawn at any time).
8.3 The Executive will (and will use reasonable endeavours to procure that his
spouse and dependent children) comply with all rules of law, including Part
V of the Criminal Justice Xxx 0000 and the Model Code as set out in the
Appendix to Chapter 16 of the Listing Rules as amended from time to time
and any rules or policies applicable to the Company from time to time in
relation to the holding or trading of securities.
8.4 The Executive confirms that he has disclosed fully to the Company all
circumstances in respect of which there is, or there would be, a conflict
of interest between the Company and the Executive or his partner or other
immediate relative and he agrees to disclose fully to the Company any such
circumstances which arise during his employment with the Company as soon as
he shall become aware of the same.
8.5 The Executive shall not without the prior approval of the Board enter into
any contract or arrangement on behalf of the Company or any Group Company
where the consideration for the provision of any goods or services is
anything other than monetary consideration.
9. Share Dealings
The Executive shall comply where relevant with every rule of law, every
regulation of the International Stock Exchange of the United Kingdom and
the Republic of Ireland or other market on which he deals and every
regulation of the Company in force in relation to dealings in shares,
debentures or other securities of the Company or any Group Company and
unpublished price sensitive information affecting the shares, debentures or
other securities of any other company.
10. Confidentiality
10.1 The Executive acknowledges that in the ordinary course of his employment he
will be exposed to information about the Company's business and the
business of other Group Companies and information about the Company's and
any Group Companies' suppliers and customers which amounts to a trade
secret, is confidential or is commercially sensitive and which may not be
readily available to others engaged in a similar business to that of the
Company or any of the Group Companies or to the general public and which is
if disclosed will be liable to cause significant harm to the Company or
such Group Companies. The Executive has therefore agreed to accept the
restrictions in this Clause 10.
10.2 Without prejudice to Clause 10.3 or 10.4 and subject to Clause 10.3 the
Executive will not during the period of his employment with the Company or
any Group Company:
10.2.1 sell or seek to sell to anyone information acquired by him in the
course of his employment with the Company or any Group Company;
10.2.2 obtain or seek to obtain any financial advantage (direct or
indirect) from disclosure of such information;
10.2.3 make any notes or memoranda relating to any matter within the scope
of the Company's or any Group Company's business dealings or affairs
otherwise than for the benefit of the Company or Group Company.
10.3 The Executive will not either during his employment or after its
termination without limit in time for his own purposes or for any purposes
other than those of the Company or any Group Company (for any reason and in
any manner) use or divulge or communicate to any person, firm, company or
organisation except to those officials of the Company or of any Group
Company whose province it is to know the same any secret or confidential
information or information constituting a trade secret acquired or
discovered by him in the course of his employment with the Company relating
to the private affairs or business of the Company or any Group Company or
their suppliers, customers, management or shareholders.
10.4 The restrictions contained in this Clause do not apply to:
10.4.1 any disclosure authorised by the Board or required by the order of a
court or otherwise required by law;
10.4.2 any information which the Executive can demonstrate was known to him
prior to the commencement of his employment by the Company or which
is in public domain otherwise than as a result of a breach by him of
this Clause;
10.5 The provisions of this Clause 10 are without prejudice to the duties and
obligations of the Executive to be implied into this agreement at common
law.
11. Medical Examination
The Executive shall if required at the expense of the Company submit to a
medical examination by a registered medical practitioner nominated by the
Company and shall authorise such medical practitioner to disclose to and
discuss with the Company's medical adviser the results of the examination
and the matters which arise from it so that the Company's medical adviser
can notify the Company of any matters he considers might impair the
Executive from properly discharging his duties.
12. Incapacity
12.1 If the Executive shall be prevented by illness accident or other incapacity
from properly performing his duties hereunder he shall report this fact
forthwith to the Board and if the Executive is so prevented for seven or
more consecutive days he shall provide a medical practitioner's statement
on the eighth day and weekly thereafter. Immediately following his return
to work after a period of absence the Executive shall complete a
self-certification form available from the Company Secretary.
12.2 Subject to clause 12.3 if the Executive shall be absent from his duties
hereunder due to illness accident or other incapacity duly certified in
accordance with the provisions of subclause 12.1 hereof he shall be paid
his full salary and all benefits hereunder for up to 60 days' absence in
any period of 6 months and thereafter such remuneration if any as the Board
shall unanimously in its discretion from time to time allow provided that
there shall be deducted from or set off against such remuneration any
statutory sick pay to which the Executive is entitled under the provisions
of the Xxxxxxxxx Xxxx Xxx Xxx 0000 or any sums payable under the Social
Security (Incapacity for Work) Xxx 0000 or other benefits recoverable by
the Executive whether pursuant to an insurance policy maintained by the
Company or otherwise and whether or not recovered.
12.3 All sums paid pursuant to this clause 12 shall be deemed to include
statutory sick pay and the Executive shall keep the Company informed of the
amount of any benefits to which he is entitled (whether or not received)
and a deduction equal to such amounts shall be made from any sums payable
under clause 12.1.
12.4 If the absence shall be or appear to be occasioned by any act, omission,
default or neglect of a third party in respect of which damages are or may
be recoverable the Executive shall immediately notify the Board of that
fact and of any claim compromise settlement or judgement made or awarded in
connection with it and shall give to the Board all particulars the Board
may reasonably require and shall if required by the Board refund to the
Company that part of any damages recovered relating to loss of earnings for
the period of the incapacity as the Board may reasonably determine provided
that the amount to be refunded shall not exceed the amount of damages or
compensation recovered by him less any costs borne by the Executive in
connection with the recovery of such damages or compensation and shall not
exceed the total remuneration paid to him by way of salary in respect of
the period of absence.
12.5 The Executive shall, if the Company so requires, submit to an examination
by a medical practitioner nominated by the Company and in the event of a
conflict of medical opinions the Company may refer the matter to an
independent specialist acting as an expert whose opinion shall be final and
binding.
12.6 For statutory sick pay purposes the Executive's qualifying days shall be
his normal working days.
13 Termination
13.1 The appointment of the Executive hereunder shall be subject to termination
by the Company by summary notice without any compensation or damages if the
Executive shall have:
13.1.1.1 committed any material breach or repeated or continued any
material breach of his obligations hereunder; or
13.1.2 been guilty of gross or persistent misconduct; or
13.1.3 in the opinion of the Board been guilty of conduct tending to
bring himself, the Company or any Group Company into disrepute; or
13.1.4 prejudiced the interests of the Company or any Group Company; or
13.1.5 been convicted of any indictable offence (other than a motoring
offence which does not result in a custodial sentence); or
13.1.6 become bankrupt or had an interim order made against him under the
Insolvency Xxx 0000 or compounded with his creditors generally; or
13.1.7 failed, after warning, in any respect to comply with his
obligations under this agreement; or
13.1.8 become a patient as defined in the Mental Health Xxx 0000 or shall
become of unsound mind; or
13.1.9 become prohibited by law from being a director; or
13.1.10 resigned as a director of the Company or any Group Company
otherwise than at the request of the Company or any Group Company;
or
13.1.11 been convicted of an offence under the Companies Securities
(Insider Dealing) Xxx 0000 or under any present or future statutory
enactment or regulations relating to insider dealings; or
13.1.12 been disqualified from holding office in the Company or in another
company in which the Executive is concerned or interested; or
13.1.13 committed any act of dishonesty whether relating to the Company or
Group Company, any of its or their employees or otherwise; or
13.1.14 unreasonably refused to agree to the transfer of this agreement by
way of novation to a person, firm or company which has acquired or
agreed to acquire the whole or substantially the whole of the
undertaking (as defined in the Transfer of Undertakings (Protection
of Employment) Regulations 1981) to which he is transferred.
13.2 If the Company becomes entitled to terminate the appointment of the
Executive hereunder pursuant to clause 13.1 it shall be entitled (but
without prejudice to its right subsequently to terminate such appointment
on the same or any other ground) to suspend the Executive either on full
pay.
13.3 In order to investigate a complaint against the Executive of misconduct the
Company is entitled to suspend the Executive on full pay for so long as may
be necessary to carry out a proper investigation and hold a disciplinary
hearing.
13.4 The Company may also terminate this agreement (notwithstanding clause 2.2)
whether or not the Executive's entitlement to sick pay has been exhausted
with immediate effect by written notice if the Executive does not perform
the duties of the employment for 120 days (whether consecutive or not) in
any period of 365 days because of sickness, injury or other incapacity.
This notice can be given whilst the Executive continues not to perform his
duties or on expiry of the 120 day period. In this clause days includes
Saturdays, Sundays and public holidays.
13.5 The exercise by the Company of its right of termination under this clause
13 shall be without prejudice to any other rights or remedies which the
Company or any Group Company may have or be entitled to exercise against
the Executive.
13.6 On the termination of this agreement for whatever reason, the Executive
shall, at the request of the Company:
13.6.1 resign without claim for compensation for loss of office from all
and any offices which he may hold as a Director of the Company and
of any Group Company and from all other appointments or offices
which he holds as nominee or representative of the Company or any
Group Company; and
13.6.2 deliver up to the Company all credit, charge and expense cards and
all books, papers, drawings, designs, documents, records and
computer software kept or made by or in the possession or control
of the Executive relating to the businesses of the Company and any
Group Company and all other property of the Company and any Group
Company;
and if he should fail to do so within seven days the Company is hereby
irrevocably authorised to appoint some person in his name and on his behalf
to sign any documents or do any things necessary or requisite to effect
such resignation or delivery.
13.7 It is acknowledged that the Executive may throughout the currency of this
agreement be granted rights under the rules from time to time of any profit
sharing, share incentive, share option, bonus or phantom option schemes
operated by the Company or any Group Company with respect to shares in the
Company or any Group Company. If, upon termination, the Executive loses any
of the rights or benefits under such scheme (including rights or benefits
which the Executive would not have lost had this agreement not been
terminated), the Executive shall not be entitled, by way of loss of office
or otherwise howsoever, to any compensation for the loss of any rights
under any such schemes.
14. Post Termination Obligations of the Executive
The provisions of Schedule 1 shall have effect.
15. Data Protection Xxx 0000
15.1 For the purposes of the Data Protection Act 1998 (the "Act") the
Executive gives his consent to the holding, processing and disclosure
of personal data (including sensitive data within the meaning of the
Act) provided by the Executive to the Company for all purposes
relating to the performance of this agreement including, but not
limited to:
15.1.1 administering and maintaining personnel records;
15.1.2 paying and reviewing salary and other remuneration and benefits;
15.1.3 providing and administering benefits (including if relevant,
pension, life assurance, permanent health insurance and medical
insurance);
15.1.4 undertaking performance appraisals and reviews; 15.1.5 maintaining
sickness and other absence records;
15.1.6 taking decisions as to the Executive's fitness for work;
15.1.7 providing references and information to future employers, and if
necessary, governmental and quasi-governmental bodies for social
security and other purposes, the Inland Revenue and the
Contributions Agency;
15.1.8 providing information to future purchasers of the Company or of the
business in which the Executive works; and
15.1.9 transferring information concerning the Executive to a country or
territory outside the EEA.
15.2 The Executive acknowledges that during his Employment he will have access
to and process, or authorise the processing of, personal data and sensitive
personal data relating to employees, customers and other individuals held
and controlled by the Company. The Executive agrees to comply with the
terms of the Act in relation to such data and to abide by any Company data
protection policy issued from time to time.
16. General
16.1 No announcement or communication concerning the terms and conditions of
this agreement shall be made or authorised by either of the parties to this
agreement without the prior written consent of the other party except to
the extent that any statement or disclosure may be required by law.
16.2 Each party shall do all such things and perform such acts and execute such
documents as may be reasonably required to give effect to this agreement.
16.3 Neither of the parties hereto may assign transfer subcontract or otherwise
dispose of its rights or obligations under this agreement in whole or in
part without the prior written consent of the other party hereto such
consent not to be unreasonably withheld or delayed and no attempted
assignment transfer subcontract or other disposal shall relieve the
purported assignor transferor subcontractor or disposer of any of its
obligations hereunder without the prior written consent of the other party
hereto such consent not to be unreasonably withheld or delayed.
16.4 No provision of this agreement is intended for the benefit of any third
parties and the parties hereby agree that the Contracts (Rights of Third
Parties) Xxx 0000 shall not have any application in relation to this
agreement or any other benefit conferred upon the Executive, his family or
any other third party during his employment.
16.5 This agreement constitutes the entire agreement between the parties in
relation to the transactions referred to herein.
16.6 If any provision or provisions of this agreement at any time becomes
illegal invalid or unenforceable in any respect, the legality validity and
enforceability of the remaining provisions of this agreement shall not in
any way be affected or impaired thereby.
16.7 No variation of any of the terms of this agreement shall be effective
unless it is in writing and signed by or on behalf of each of the parties
hereto.
16.8 Nothing in this Agreement shall constitute or be deemed to constitute a
partnership between any of the parties hereto and nothing in this Agreement
shall be deemed to constitute either of the parties the agent of the other
and neither of them shall have any authority to bind the other in any way.
16.9 There are no collective agreements with trade unions which directly affect
the terms and conditions of the Executive's employment.
16.10 There [is a/is no] contracting-out certificate in force in relation to the
Executive's Employment.
16.11 In no event shall any delay failure or omission on the part of either of
the parties in enforcing exercising or pursuing any right power privilege
claim or remedy which is conferred by this agreement or arises under this
agreement or arises from any breach by the other parties to this agreement
or any of its obligations hereunder be deemed to be or construed as (i) a
waiver thereof or of any other such right power privilege claim or remedy,
or (ii) operate so as to bar the enforcement or exercise thereof or of any
other such right power privilege claim or remedy in any other instance at
any time or times thereafter. The rights and remedies of the parties
provided in this agreement are cumulative and not exclusive of any rights
and remedies provided by law.
16.12 This agreement is governed by English Law and the parties submit to the
non-exclusive jurisdiction of the English Court.
17. Notices
All notices and other communications hereunder shall be in writing and
shall be sent to the address of the recipient set out in this Agreement or
such other address as the recipient may designate by notice given in
accordance with the provisions of this clause. Any such notice may be
delivered personally during the recipient's normal business hours or by
first class pre paid letter (except in the event of a generally prevailing
labour dispute or other situation which will delay or impede the service of
such a notice by post) or facsimile transmission (during the recipient's
normal business hours) and shall be deemed to have been served as if by
personal delivery when delivered at the said address in the hands of a
person who reasonably appears to be authorised to receive post or messages
on behalf of the party to be served if by first class post forty eight (48)
hours after posting and if by facsimile transmission (confirmed by letter
sent by post) when dispatched.
As witness of which this agreement is signed for and on behalf of the
Company and by the Executive on the before written even date.
Schedule 1
Protection of Goodwill
In this Schedule the following words shall have the following meanings:
the "Business" means all and any trades or other commercial activities of the
Company or any Group Company with which the Executive has been involved or
concerned to any material extent at any time during the period of 12 months
ending on the Termination Date which the Company or Group Company shall carryon
with a view to profit or, all and any trades or other commercial activities with
which the Company or Group Company shall as at the Termination Date have
determined to carry on with a view to profit in the immediate or foreseeable
future and in relation to which the Executive shall at the Termination Date
possess any Confidential Information as defined in Clause 1.1 of this agreement;
"directly or indirectly" means the Executive acting either alone or jointly with
or on behalf of any other person, firm or company, whether as principal,
partner, manager, employee, contractor, director, executive, investor or
otherwise;
"Key Personnel" means any person who is at the Termination Date or was, at any
time during the period of 12 months ending on the Termination Date, employed in
the Business in an executive, senior sales or senior managerial position and
who, by reason of such a position, possesses any Confidential Information as
defined in clause 1.1 of this agreement or is likely to be able to solicit the
custom of any Relevant Customer or Prospective Customer or induce any Relevant
Customer to cease dealing with the Company or any Group Company, were he to
accept the employment or engagement in a business which is similar to or in
competition with the Business.
"Prospective Customer" means any person, firm or company who has been engaged in
negotiations, in which the Executive has been personally involved, with the
Company or any Group Company with a view to purchasing Relevant Goods and
Services from the Company or any Group Company in the period of three months
prior to the Termination Date;
"Relevant Customer" means any person, firm or company who at any time during the
12 months prior to the Termination Date as a customer of the Company or any
Group Company, being a person, firm or company with whom or which the Executive
regularly dealt or for whom or which the Executive was responsible on behalf of
the Company or any Group Company at any time during the said period;
"Relevant Goods and Services" means all and any products or services of a kind
which shall be dealt in, produced, marketed, sold or provided by any Company or
Group Company in the ordinary course of the Business at any time during the 12
months immediately preceding the Termination Date;
"Relevant Supplier" means any person, firm or company who at any time during the
12 months immediately preceding the Termination Date was a supplier of any goods
or services to the Company or any Group Company in the ordinary course of the
Business;
"Restricted Area" means the area constituting the market of the Company or any
Group Company for Relevant Goods and Services in the period of 12 months prior
to the Termination Date and with which area the Executive was materially
concerned at any time during the said period of 12 months;
"Termination Date" means the date on which this agreement shall terminate for
whatever reason.
1. The Executive shall not without the prior written consent of the Board
within a period of 9 months less the duration of any period of garden leave
from the Termination Date directly or indirectly entice away, or endeavour
to entice away, from the Company or any Group Company any Key Personnel.
2. The Executive shall not without the prior written consent of the Board
whether directly or indirectly at any time within the period of 9 months
less the duration of any period of garden leave from the Termination Date:
2.1 solicit the custom of any Relevant Customer in respect of any Relevant
Goods or Services; or
2.2 interfere or seek to interfere or take steps that may interfere, with
the continuance of supplies to the Company and/or any Group Company
(or the terms relating to those supplies) from any Relevant Supplier.
3. The Executive shall not without the prior written consent of the Board
whether directly or indirectly within the Restricted Area at any time
within the period of 9 months less the duration of any period of garden
leave following the Termination Date engage or be concerned or interested
in any business carried on in competition with the Business, provided that
the Executive may hold (directly or through nominees) by way of bona fide
personal investment any units of any authorised unit trust and up to one
per cent of the issued shares, debentures or securities of any class of any
company whose shares are listed on a recognised investment exchange within
the meaning of the Financial Services Xxx 0000 or dealt in the Unlisted
Securities Market and/or the Alternative Investment Market.
4. The Executive acknowledges (having taken appropriate legal advice) that the
provisions of this Schedule are fair and reasonable and necessary to
protect the goodwill and interests of the Company and the Group Companies
and shall constitute separate and severable undertakings given for the
benefit of the Company and each Group Company and may be enforced by the
Company on behalf of any of them.
5. If any of the restrictions or obligations contained in this schedule is
held not to be valid as going beyond what is reasonable for the protection
of the goodwill and interests of the Company and the Group Companies but
would be valid if part of the wording were deleted then such restriction or
obligation shall apply with such deletions as may be necessary to make it
enforceable.
6. The Executive acknowledges and agrees that upon the termination of this
agreement he shall be obliged to draw the provisions of this schedule to
the attention of any third party who may at any time either before or after
the date of termination of this agreement agree to employ him or agree to
retain him as an Executive.
Signatories
Signed by XXXXX XXXXX /s/__Peter Liney_______
Signed for and on behalf of
TRAVELBAG PLC
Xxxxx Xxxxxxxx /s/__Peter Bradshaw____
