EXHIBIT 10.21
DATED MAY 1998
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THE ASSOCIATED OCTEL COMPANY LIMITED
- and -
XXXXXXX XXXXX SHONE
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EXECUTIVE SERVICE AGREEMENT
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DATE: 22nd May 1998
PARTIES:
1. THE ASSOCIATED OCTEL COMPANY LIMITED (registered no: 344359) whose
registered office is at Xxxxx 0, 0xx Xxxxx, Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxx
Square, London. W1X 6DT ("the Company").
2. XXXXXXX XXXXX SHONE of 0 Xxxxxxxx Xxxxx, Xxxxx, Xxxxxx, Xxxxxxxxxx, X00 0XX
("the Executive").
OPERATIVE PROVISIONS:
1. INTERPRETATION
2.
1.1. The headings and marginal headings to the Clauses are for convenience only
and have no legal effect.
1.2. 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.
1.3. In this Agreement:
"the Board" means the Board of Directors of the Parent or
the Company as the case may be and includes any
committee of the Board duly appointed by it;
"Managing Director" means any person or persons jointly holding such
office of the Company from time to time and
includes any person(s) exercising substantially
the functions of a
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Managing Director or Chief Executive Officer
of the Company;
"Confidential Information" includes but is not limited to all any trade
secrets, names and contact details of
customers and prospective customers,
purchasing and sales agents, suppliers, prices
charged to or charged by the company,
financial and budget information, and any
other information of a confidential nature
relating to the Company or any Associated
Company or information which has been given to
the Company or any Associated Company by a
third party under a duty of confidence where
such a duty has been made known to the
Executive and which is not in the public
domain otherwise than by breach of the
Executive's duties of confidentiality to the
Company.
"Corporate Information" means all and any information (whether or not
recorded in documentary form or on computer
disc or tape) relating to the business
methods, corporate plans, management systems,
finances, business opportunities or research
and development projects of the Company or any
Associated Company.
"Marketing Information" means all and any information (whether or not
recorded in documentary form or on computer
disc or tape) relating to the marketing or
sales of any product or service of the Company
or any Associated Company including without
limitation sales targets and statistics,
market share and pricing statistics, marketing
surveys and plans, market research reports,
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sales techniques, price lists, discount
structures, advertising and promotional
material, the names, addresses, telephone
numbers, contact names and identities of
customers and potential customers of and
suppliers and potential suppliers to the
Company or any Associated Company and the
nature of their business operations, their
requirements for any product or service sold
to or purchased by the Company or any
Associated Company and all confidential
aspects of their business relationship with
the Company or any Associated Company.
"Associated Company" means a subsidiary and any other company which
is for the time being a holding company (as
defined by the Company Acts 1985 Section 736)
of the Company or another subsidiary of any
such holding company.
"Pension Scheme" means The Associated Octel Company Limited
Pension Plan.
"Parent" means Octel Corp.
2. APPOINTMENT AND DURATION
2.1. The Parent and the Company agree to employ the Executive and the Executive
hereby accepts employment with the Parent and the Company upon the terms
and conditions set forth in this Agreement.
2.2. The Company appoints the Executive and the Executive agrees to serve as a
Director or Officer of the Company and for any Associated Company or in
such other appointment as may from time to time be agreed. The Executive
accepts that the
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Company may at its discretion require him to perform other duties or tasks
not within the scope of his normal duties and the Executive agrees to
perform those duties or undertake those tasks as if they were specifically
required under this Agreement.
2.3. The appointment shall be deemed to have commenced on 22nd May 1998 and
shall continue (subject to earlier termination as provided in this
Agreement) until terminated by the Company giving to the Executive not less
than 12 calendar months prior notice or by the Executive giving to the
Company not less than 6 calendar months prior notice. The Executive's
period of continuous employment with the Company began on 12th May 1997.
2.4. With the prior consent of the Executive the Company may from time to time
appoint any other person or persons to act jointly with the Executive in
his appointment.
2.5. The Executive warrants that by virtue of entering into this Agreement he
will not be in breach of any express or implied terms or any contract with
or of any other obligation to any third party binding upon him.
3. DUTIES OF THE EXECUTIVE
3.1. The Executive shall at all times during the period of this Agreement:
3.1.1. devote the whole of his time, attention and ability to the duties
of his appointment save for such reasonable time as he may use for
non-executive directorships of companies, which he has been
authorised in writing by the Board to accept;
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;
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3.1.3. obey all lawful and reasonable directions of the Board of the
Parent of the Company;
3.1.4. use his best endeavours to promote the interests of the Company;
3.1.5. keep the Managing Director promptly and fully informed (in writing
if so requested) of his conduct of the business or affairs of the
Company or any Associated Company and provide such explanations in
connection therewith as the Managing Director may require;
3.1.6. not at any time make any untrue or misleading statement relating to
the Company or any Associated Company;
3.1.7. inform the Managing Director promptly if he receives a solicitation
from a competitor or potential competitor either on a personal or a
business basis which could be prejudicial to the best interests of
the Company or its Associated Companies.
4. PLACE OF WORK AND RESIDENCE
4.1. The Executive shall perform his duties at the Company's premises in
Ellesmere Port and/or such other place of business of the Company as the
Company may require whether inside or outside the United Kingdom but the
Company shall not without his prior consent require him to go to or reside
anywhere outside the United Kingdom except for occasional visits in the
ordinary course of his duties, such visits not normally to exceed a period
of one month.
4.2. The Executive shall at all times reside within a radius of 40 miles from
his place of work from time to time. If the Company shall change his place
of work such that the Executive has to relocate his residence to remain
within that radius, the Company shall reimburse him his removal and other
incidental expenses in accordance with its
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then current policy for relocation of Executives.
5. HOURS OF WORK
The Executive's hours of work are the normal hours of the Company from 9 am
to 5.30 pm Monday to Friday each week together with such additional hours
as may be necessary so as properly to fulfill his duties.
6. PAY
6.1. During his appointment the Company shall pay to the Executive:
6.1.1. a basic salary at the rate of (pounds)85,000 per year which shall
accrue day to day and be payable by equal monthly instalments in
advance according to the published schedule of payment dates. The
salary shall be deemed to include any fees receivable by the
Executive as a Director or Officer of the Company, or of any other
Associated Company or other company unincorporated body in which he
holds office as nominee or representative of the Company or an
Associated Company and
6.1.2. a bonus in accordance with the corporate bonus scheme set out in
Schedule 1.
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6.2. The Executive's basic salary shall be reviewed by the Board on 1st January
each year except in the first year and the rate of basic salary may be
increased by the Company on a discretionary basis with effect from that
date by such amount if any as it shall think fit. The first such review of
salaries will take place on 1st January 2000.
7. PENSION
7.1. The Executive shall be entitled to be and remain a member of the Company
Pension Scheme subject to the terms of its Deed and Rules from time to time
details of which are at Schedule 2. The Company shall be entitled at any
time to terminate the Pension Scheme or the Executive's membership of it
subject to providing him with the benefit of an equivalent pension scheme
("the New Scheme") each and every benefit of which shall not be less
favourable than the benefits provided to the Executive under the existing
scheme and to ensuring that the Executive is fully credited in the New
Scheme for his pensionable service in the existing scheme as if such
pensionable service has been under the New Scheme.
7.2. For the purposes of Part III of the Xxxxxxx Xxxxxxx Xxx 0000 there is a
contracting-out certificate in force.
7.3. The Company will provide additional pension benefits which after taking
account of the Executive's entitlement under the Company Pension Scheme,
shall be the equivalent of 1/40th of full basic pay (as provided under
Clause 6.1.1 above) irrespective of the Inland Revenue Pensions Cap for
each year of pensionable service. The Executive is entitled to participate
in The Associated Octel Funded Unapproved Retirement Benefits Scheme
(FURBS) and The Associated Octel Top Hat Scheme (which together are
hereinafter referred to as the Company Pension Plans) by which such
additional pension provision referred to within this sub-Clause shall be
provided.
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7.4. Without prejudice to Clause 7.3, should the Executive be prevented or
restricted in part or in whole by UK Inland Revenue restrictions from
drawing benefits otherwise payable under the Company Pension Plans, the
Company shall pay him further salary which after meeting income tax
obligations shall be equivalent to the cost of providing the pension
benefits denied him by such UK Inland Revenue restrictions.
7.5. The Executives accrued benefits under the Company Pension Plans shall
survive termination of this Agreement, irrespective of the cause or reason
for such termination.
8. INSURANCE BENEFITS
8.1. The Executive shall be entitled to participate at the Company's expense in
the Company's Permanent Health Insurance scheme which provides cover for
permanent sickness or disability. He will also be covered for himself, his
spouse and eligible children in the Company's BUPA Scheme, subject to the
rules of such schemes, details of which are available from the HR Director.
The Company may choose to terminate its agreement with BUPA and provide at
least equivalent benefits with an alternative supplier.
9. CAR
9.1. Subject to the Executive holding a current full driving licence a car of
make, model and specification in line with current policy for executives
will be provided. The policy also includes an option to trade up to a
higher cost car, the additional cost of such to be borne by the Executive.
The policy is available from the HR Director. At the option of the Company
a non-pensionable cash allowance may be paid by monthly instalments in
arrears in lieu of the provision of a Company car in line with current
Company policy.
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9.2. The Company shall bear all standing and running expenses of the car
including fuel consumed during private use of the car throughout Europe,
including holiday usage and any additional insurance costs incurred to
permit the Executive to use the car outside the United Kingdom for
private purposes.
9.3. The Executive shall always comply with all regulations laid down by the
Company from time to time with respect to company cars; shall follow the
Company policy in the case of any accidents involving his Company car,
shall immediately report to the Company any driving convictions in
respect of which he is disqualified from driving a motor vehicle and, on
the termination of his appointment whether lawfully or unlawfully, shall
forthwith return his Company car to the Company, (except as provided for
in Clause 17.6.3).
10. EXPENSES
10.1. The Company shall reimburse to the Executive normally 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 from time to time in this respect and to the production to the
Company of such vouchers or other evidence of actual payment of the
expenses as the Company may reasonably require.
10.2. The Company will issue Company sponsored charge card(s) to the Executive
and he shall use such card(s) only for expenses reimbursable under Clause
10.1 above, and shall return the card(s) to the Company forthwith on the
termination of his employment.
11. HOLIDAY
11.1. In addition to English public holidays the Executive is entitled to 30
working days paid holiday in each holiday year which runs from 1st
January to 31st December to
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be taken at such time or times as are agreed with the Managing Director.
The Executive may, with the consent of the HR Director, carry forward up
to 10 unused days from his holiday entitlement to be taken by 31st March
in the subsequent holiday year.
11.2. The Executive, with the written consent of the HR Director, may bank up
to 5 days per year of his holiday entitlement which can be taken
immediately prior to his normal (or early) retirement date.
Alternatively, the banked holiday days may be taken as sabbatical leave
with the permission of the Managing Director.
11.3. For the holiday year during which his appointment commences or
terminates, the Executive is entitled to two and a half working days
holiday for each calendar month of his employment by the Company during
that holiday year. On the termination of his appointment for whatever
reason, 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 entitlement.
12. SICKNESS
12.1. If the Executive is absent because of sickness (including mental
disorder) or injury he shall report this fact forthwith to his immediate
Supervisor and if the Executive is so prevented for seven or more
consecutive days he shall provide a medical practitioner's statement to
the HR Director on the eighth day and weekly thereafter so that the whole
period of absence is certified by such statements. Immediately following
his return to work after a period of absence due to incapacity the
Executive shall complete a Self-Certification form available from the HR
Department detailing the reason for his absence. This should be forwarded
to the Staff Pay Office at Ellesmere Port by the Executive on the first
day of his return to work.
12.2. If the Executive shall be absent due to sickness (including mental
disorder) or injury duly certified in accordance with the provisions of
Clause 12.1 hereof, he shall be paid his full remuneration hereunder for
up to one month's absence in any period of
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twelve consecutive months and thereafter such remuneration, if any, as
the Managing Director shall determine from time to time provided that
such remuneration shall:-
12.2.1. never be less than the proceeds received by the Company in
respect of the Executive under the Company's permanent health
insurance scheme (after paying pension contributions); and
12.2.2. be inclusive of any Statutory Sick Pay to which the Executive is
entitled under the provisions of the Social Security
Contributions and Benefits Xxx 0000 and any Social Security
Sickness Benefit or other benefits recoverable by the Executive
(whether or not recovered) may be deducted therefrom.
12.3. If the sickness or injury of the Executive 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 Executive shall immediately notify
the Company of that fact and of any claim, compromise, settlement or
judgment made or awarded in connection with it and shall give to the
Company all particulars the Company may reasonably require and shall if
required by the Company refund to the Company that part of any damages
recovered relating to loss of earnings for the period of the incapacity
as the Company may reasonably require, 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 and or compensation and shall not exceed the
total remuneration paid to him by way of salary in respect of the period
of absence.
12.4. For Statutory Sick Pay purposes the Executive's qualifying days shall be
his normal working days.
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12.5. At any time during the period of his appointment the Executive shall at
the request and expense of the Company permit himself to be examined by a
registered medical practitioner to be selected by the Company and shall
authorise such medical practitioner to disclose to and discuss with the
Company's medical adviser the result of such examination and any matters
which arise from it in order that the Company's medical adviser can
notify the Company of any matters which, in his opinion, might hinder or
prevent the Executive (if during a period of incapacity) from returning
to work for any period or (in other circumstances) from properly
performing any duties of his appointment at any time.
13. ACKNOWLEDGMENTS BY THE EXECUTIVE
The Executive acknowledges:
13.1. that the Company or its Associated Companies possesses or will possess a
valuable body of Confidential Information; and
13.2. that the Company or its Associated Companies will give him access to
Confidential Information in order that he may carry out the duties of his
employment; and
13.3. that the duties of his employment include without limitation a duty of
trust and confidence and a duty to act at all times in the best interests
of the Company and any Associated Company; and
13.4. that his knowledge of Confidential Information directly benefits him by
enabling him to perform his management duties; and
13.5. that the disclosure of any Confidential Information to any competitor of
the Company or any Associated Company or to other third parties would
place the Company or any
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Associated Company at a serious competitive disadvantage and would cause
serious financial and other damage to their businesses; and
13.6. that the success of the business of the Company and its Associated
Companies depends in part on the Executive's success and the Directors of
the Company and its Associated Companies establishing business
relationships with clients similar to those established and maintained by
the Executive in the course of his employment.
14. RESTRICTIVE COVENANTS
14.1. The Executive shall not make use of, divulge or communicate to any person
(save in the performance of his duties during the course of his
employment) any trade secrets or other Confidential Information or
Marketing Information of or relating to the Company or any of its
Associated Companies which he may have received or obtained while in the
service of the Company or any of its Associated Companies. This
restriction shall continue to apply after the termination of his
employment without limit in point of time and shall cease to apply to
information ordered to be disclosed by a Court of competent jurisdiction
or otherwise required to be disclosed by law.
14.2. Restrictions on competition
14.2.1. Within this Clause 14 the following words shall have the
following meanings:
`Termination Date'shall mean the date of termination of your
employment in accordance with the terms of this contract.
`Relevant Period' shall mean the twelve month period prior to
and ending with the Termination Date.
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`Restricted Customer' shall mean any person, firm, company or
other entity who was at any time in the relevant period a
customer of the Company or any Associated Company.
`Prospective Customer' shall mean any person, firm or company
who was at the Termination Date negotiating with the Company or
any Associated Company with a view to dealing with the Company
or any Associated Company as a customer.
`Prohibited Business' shall mean any business or activity
carried on by the Company or any Associated Company at the
Termination Date or at any time in the Relevant Period in which
you shall have been directly concerned in the course of your
employment at any time in the Relevant Period.
`Protected Supplier' shall mean any supplier or prospective
supplier of the Company or any Associated Company with whom you
shall have had dealings in the course of your employment during
the Relevant Period.
14.2.2. You shall not compete with the Company or any Associated Company
during the period of twelve months after the Termination Date
directly or indirectly on your own account or on behalf of or in
conjunction with any person, firm or company or other
organisation canvas or solicit or by any other means seek to
conduct, or conduct Prohibited Business with any Restricted
Customer with whom you shall have had material dealings during
the course of your duties hereunder at any time in the Relevant
Period or with whom and to your knowledge any employee or agent
of the Company or any Associated Company shall have had material
dealings in the Relevant Period.
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14.2.3. You shall not compete with the Company or any Associated Company
during the period of twelve months after the Termination Date
directly or indirectly on your own account or on behalf of or in
conjunction with any person, firm or company or other
organisation canvas or solicit or by any other means seek to
conduct Prohibited Business with or conduct Prohibited Business
with any prospective customer with whom you shall have had
material dealings in the course of your duties hereunder at any
time in the Relevant Period or with whom and to your knowledge
any employee or agent of the Company or any Associated Company
shall have had material dealings in the Relevant Period.
14.2.4. You shall not during the period of twelve months after and
during a six month period prior to the Termination Date directly
or indirectly induce or seek to induce any employee being a
manager or a director of the Company or any Associated Company
engaged in the Prohibited Business who was such an employee at
the Termination Date and with whom you shall during the Relevant
Period have had material dealings in the course of your duties
hereunder to leave the employment of the Company or any
Associated Company whether or not this would be a breach of
contract on the part of that employee.
14.2.5. You shall not during the period of twelve months after the
Termination Date directly or indirectly seek to entice away from
the Company or any Associated Company or otherwise solicit or
interfere with the relationship between the Company or any
Associated Company and any Protected Supplier.
14.2.6. Each of the restrictions contained in this Clause 11 is intended
to be separate and severable. In the event that any of the
restrictions shall be held void but would be valid if part of
the wording thereof were deleted,
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such restriction shall apply with such deletion as may be
necessary to make it valid and effective.
14.2.7. The Company reserves the right to update and change these
conditions when circumstances dictate to reflect the changing
nature of its business and protectable interests.
14.3. Each of the restrictions in each of Clauses 14.2.2 to 14.2.7 is
considered by the parties to be reasonable in all the circumstances but
if any such restriction shall be held by any Court to be void as going
beyond what is reasonable in all the circumstances for the protection of
the interests of the Company, the said restriction shall apply with such
modifications as may be necessary to render it valid and effective.
15. INTELLECTUAL PROPERTY
You will promptly disclose to the Company and keep confidential all
inventions, copyright works, designs or technical know how conceived or
made by you alone or with others in the course of your employment. You
will hold all such intellectual property in trust for the Company and
will do everything necessary or desirable at its expense to vest the
intellectual property fully in the Company and/or any Associated Company
and/or to secure patent or other appropriate forms of protection for the
intellectual property. Decisions as to the protection or exploitation of
any intellectual property shall be in the absolute discretion of the
Company.
16. COPYRIGHT
16.1. The Executive hereby assigns to the Company by way of future assignment
all copyright, design right and other intellectual property rights for
the full terms thereof throughout the world in respect of all copyright
works and designs originated, conceived, written or made by the Executive
(except only those works or designs originated, conceived, written or
made by the Executive wholly outside his normal
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working hours which are wholly unconnected with his employment or the
business of the Company) during the period of his employment by the
Company.
16.2. The Executive hereby irrevocably and unconditionally waives in favour of
the Company any and all moral rights conferred on him by Chapter 4 of
Part I of the Copyright Designs and Patents Xxx 0000 for any work in
which copyright or design right is vested in the Company whether by
Clause 16.1 or otherwise.
16.3. The Executive shall, at the request and cost of the Company, do all
things necessary or desirable to substantiate the rights of the Company
or any Associated Company under Clauses 16.1 and/or 16.2.
17. TERMINATION OF AGREEMENT
17.1. Automatic Termination
This Agreement shall automatically terminate:
17.1.1. on the first day of the month following the Executive reaching
his 65th birthday; or
17.1.2. if the Executive becomes prohibited by law from being a Director
of the Parent; or
17.1.3. if he resigns his office as a Director of the Company; or
17.1.4. if the office of Director of the Company held by the Executive
is vacated pursuant to the Company's Articles of Association
save if the vacation shall be caused by illness (including
mental disorder) or injury; or
17.1.5. if the Executive otherwise ceases to be a Director of the
Company.
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17.2. Suspension
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.
17.3. Immediate Dismissal
The Company may by notice terminate this Agreement with immediate effect
if the Executive:
17.3.1. commits any act of gross misconduct or repeats or continues
(after written warning) any other serious breach of his
obligations under this Agreement; or
17.3.2. is guilty of any conduct which in the reasonable opinion of the
Board of the Parent brings him, or the Company or its Associated
Companies into disrepute; or
17.3.3. is convicted of any criminal offence punishable with more than
six months imprisonment (other than an offence under road
traffic legislation in the United Kingdom or elsewhere in
respect of which he is convicted and is sentenced to an
immediate term of imprisonment); or
17.3.4. commits any act of dishonesty whether relating to the Company,
any of its or their employees or otherwise; or
17.3.5. when he is a Director of the parent, becomes bankrupt or makes
any
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arrangement or composition with his creditors generally; or
17.3.6. is in the reasonable opinion of the Board of the parent
incompetent in the performance of his duties.
17.4. Dismissal on Short Notice
The Company may terminate this Agreement as follows notwithstanding
Clause 12.2 by not less than six months' prior notice given at any time
while the Executive is incapacitated by ill-health or accident from
performing his duties under this Agreement and has been so incapacitated
for a period or periods aggregating 100 days in the preceding twelve
months. Provided that:-
17.4.1. the Company shall withdraw any such notice if during the
currency of the notice the Executive returns to full time duties
and provides a medical practitioner's certificate satisfactory
to the Board to the effect that he has fully recovered his
health and that no recurrence of his illness or incapacity can
reasonably be anticipated;
17.4.2. the Company shall not exercise this right if the effect of so
doing shall be to deprive the Executive of any of the benefits
of the Permanent Health Insurance referred to in Clause 8.1.
17.5. Pay in lieu
Upon notice being tendered by either party to terminate this Agreement or
at any time thereafter during the currency of such notice the Company
shall be entitled to require the Executive to refrain from carrying out
some or all of his duties during the period of such notice and to serve
out such notice at his home or any of the Company's UK premises.
17.6. Change of Control
17.6.1 Termination by Company Without Cause or By Executive for Good
Reason After Change of Control.
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Notwithstanding any other provisions in this Agreement, if
during the three- year period following a "Change of Control",
the Company terminates the Executive without Cause or the
Executive terminates his employment for Good Reason, then the
Company shall pay the Executive an amount equal to (i) three (3)
times the highest base salary in effect during the term of this
Agreement and (ii) three (3) times the highest annual bonus paid
during the term of this Agreement, and (iii) all amounts accrued
for (a) base salary through the termination date, (b) any unpaid
annual bonus for completed years, (c) accrued vacation through
the termination date, and (d) business expenses through the
termination date. The Company shall pay the Executive all
amounts to which he is entitled under this paragraph within 10
days after the termination date. In addition, for purposes of
determining the Executive's entitlement to benefits under the
Company's retirement plans, the Company shall credit the
Executive with three (3) additional years of service and
earnings as though he had continued to work through such
three-year period at the highest base salary and annual bonus
paid during the term of this Agreement. If the Company is
prohibited by law from crediting the Executive with such service
and earnings under any qualified plan, it shall make any such
incremental benefit available to him under a non-qualified
supplemental plan. Where such termination takes place before 3
years service, the annual bonus multiplier will be assumed to be
the target percentage for the Executive.
17.6.2. Under the circumstances described in Clause 17.6.1, all stock
options previously granted to the Executive and not yet expired,
will become fully and immediately vested and exercisable on the
Termination Date and for 180 days thereafter. During the first
45 days of trading, a notional value of $15 per share will be
assumed.
17.6.3. Under the circumstances described in Clause 17.6.1, the Company
will cause title to the Executive's currently allocated car, if
a car was provided by the Company at the date of the change of
control, to be transferred free of charge to the Executive
within ten days of the Termination Date.
17.6.4. For the purposes of Clause 17.6 "Change of Control" means a
change in
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control of a nature that would be required to be reported in
response to item 5 (f) of Schedule 14A of Regulation 14A
promulgated under the Securities Exchange Act of 1934 of the
United States of America, as amended ("Exchange Act") whether or
not the Parent or the Company is then subject to such reporting
requirement; provided that, without limitation, such a change in
control shall be deemed to have occurred if (a) any "person" or
"group" (as such terms are used in Section 13(d) and 14(d) of
the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of the Parent or the Company
representing 20% or more of the combined voting power of the
Parent's or the Company's, respectively, then outstanding
securities (other than the Parent, the Company, any employee
benefit plan of the Company or the Parent); and, for purposes of
this Agreement, no change in control shall be deemed to have
occurred as a result of the "beneficial ownership", or changes
therein, of the Parent's or the Company's securities,
respectively, by any of the foregoing, (b) there shall be
consummated (i) any consolidation or merger of Parent or the
Company in which the Parent or the Company is not the surviving
or continuing corporation or pursuant to which shares of the
Parent's or the Company's Common Stock, respectively, would be
converted into cash, securities or other property, other than a
merger of the Parent or the Company in which the holders of the
Parent's Common Stock immediately prior to the merger have
(directly or indirectly) at least a 70% ownership interest in
the outstanding Common Stock of the surviving corporation
immediately after the merger, or (ii) any sale, lease, exchange
or other transfer (in one transaction or a series of related
transactions) of all, or substantially all, of the assets of the
Parent or the Company, (c) the shareholders of the Parent
approve any plan or proposal for the liquidation or dissolution
of the Parent, or (d) as the result of, or in connection with,
any cash tender offer, exchange offer, merger or other business
combination, sale of assets, proxy or consent solicitation
(other than by the Board of the
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parent), contested election or substantial share accumulation (a
"Control Transaction"), the members of the Board of the Parent
immediately prior to the first public announcement relating to
such Control Transaction shall thereafter cease to constitute a
majority of the Board of the Parent.
17.6.5. For the purposes of Clause 17.6 "Good Reason" exists if, without
the Executive's express written consent, (a) the Executive is
assigned duties materially inconsistent with his present
position, duties, responsibilities and status with the Company
and the Parent, (b) the Company reduces the Executive's base
salary as in effect on the effective date hereof or as the same
may be increased from time to time, (c) the Company reduces the
Executive's aggregate compensation and incentive and benefit
package, (d) the Company requires the Executive regularly to
perform his duties of employment beyond a forty miles radius
from the location of his current place of employment, (e) the
Company takes any other action which materially and adversely
changes the conditions or perquisites of the Executive's
employment as in effect at the time of the Change of Control,
(f) the Parent or the Company fails to obtain a satisfactory
agreement from any successor to assume and agree to perform this
Agreement, or (g) the Company purports to terminate the
Executive's employment other than pursuant to a Notice of
Termination which satisfies the requirements of Clause 17.6
(and, for purposes of this Agreement, no such purported
termination shall be effective).
17.6.6. For the purposes of Clause 17.6 "Cause" means (a) the
Executive's conviction of any criminal violation involving
dishonesty, fraud or breach of trust, or (b) the Executive's
willful engagement in gross misconduct in the performance of his
duties that materially injures the Company. For purposes of this
definition, no act or failure to act on the Executive's part
shall be considered "willful" unless done, or omitted to be
done, by the Executive not in good faith and without reasonable
belief that his action or omission was in the best interest of
the Company or its Subsidiaries.
17.6.7. For the purposes of Clause 17.6 "Without Cause" means an
involuntary termination of the Executive's employment by the
Company other than for
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cause (defined in Clause 17.6.6.) or due to the Executive's
death or disability.
17.6.8. Default of Payment. Any payment not made within ten days after
it is due in accordance with this Agreement shall thereafter
bear interest, compounded annually, at an interest rate equal to
the prime rate from time to time in effect at the Barclays Bank
interest rate plus two percent (2%).
17.6.9. The Executive will not be required to mitigate the amount of any
payment or benefits provided for in Clauses 17.6.1, 17.6.2 and
17.6.3 by seeking other employment, nor shall those amounts be
reduced by any payments or benefits received after the
Termination Date from another employer.
17.7. Miscellaneous
On tendering notice by either party, or at any time thereafter, the
Executive shall at the request of the Company:
17.7.1. resign (without prejudice to any claims which the Executive may
have against any Company arising out of this Agreement or the
termination thereof) from all and any offices which he may hold
as a Director of the Company or any Associated Companyand from
all other appointments or offices which he holds as nominee or
representative of the Companyor any Associated Company; and
17.7.2. transfer without payment to the Company or as the Company may
direct any qualifying shares provided by it to him; 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(s) and/or transfer(s).
18. DISCIPLINARY AND GRIEVANCE PROCEDURE
18.1. The Executive is subject to the Company's disciplinary rules and
procedure, details of which are contained in the Company's Handbook, but
the Executive has no
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contractual entitlement in this respect.
18.2. 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 Managing Director and if the grievance is not resolved it will be
referred to the Board of the Parent for resolution.
19. GENERAL
19.1. Collective Agreements
There are no collective agreements currently in force applicable to the
Executive's employment.
19.2. Reconstruction and amalgamation
If the Executive's employment hereunder shall be terminated by reason of
the liquidation of the Company for the purposes of reconstruction or
amalgamation then the Executive shall be offered employment with any
concern or undertaking resulting from such reconstruction or amalgamation
on terms and conditions not less favourable than the terms of this
Agreement as then in operation and the Executive shall have no claim
against the Company in respect of the termination of his employment
hereunder by reason of liquidation for such purposes.
19.3. Prior agreements
This Agreement sets out the entire agreement and understanding of the
parties and is in substitution for any previous contracts of employment
or for services between the Company or any of its Group Companies and the
Executive (which shall be deemed to have been terminated by mutual
consent).
19.4. Accrued rights
The expiration or termination of this Agreement however arising shall not
operate to
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affect such of the provisions of this Agreement as are expressed to
operate or have effect after then and shall be without prejudice to any
accrued rights or remedies of the parties.
19.5. Proper law
The validity construction and performance of this Agreement shall be
governed by English law.
19.6. Acceptance of jurisdiction
All disputes claims or proceedings between the parties relating to the
valid construction or performance of this Agreement shall be subject to
the non-exclusive jurisdiction of the High Court of Justice in England
and Wales ("the High Court") to which the parties irrevocably submit.
19.7. Notices
Any notice to be given by a party under this Agreement must be in writing
and must be given by delivery at or sending first class post or other
faster postal service, or facsimile transmission or other means of
telecommunication in permanent written form (provided the addressee has
facilities for receiving such transmissions) to the last known postal
address or relevant telecommunications number of the other party. Where
notice is given by sending in a prescribed manner it shall be deemed to
have been received when in the ordinary course of the means of
transmission it would be received by the addressee. To prove the giving
of a notice it shall be sufficient to show it was despatched. A notice
shall have effect from the sooner of its actual or deemed receipt by the
addressee.
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IN WITNESS whereof the Executive and the Company have executed this document as
a Deed the day and year first before written
SIGNED AND DELIVERED AS A DEED )
by the Executive in the presence of: )
EXECUTED AND DELIVERED AS A DEED )
by the Company acting by: )
Director: ________________________________
Director/Secretary: ______________________
in the presence of: ______________________
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