Exhibit 4.10
12 July 2002
PRIVATE & CONFIDENTIAL
Xx Xxxxxxx Sampler
Sandalwood
Xxxxxxxxxx Xxxx
Xxxxxxx Xxxxxx
Xxxxx
XX0 0XX
Dear Xxxxxxx
Your PositionY as Non-Executive Director of the Company
I am writing to record the new terms we have agreed regarding your continued
appointment as a non-executive director of ebookers plc ("the Company"). This
letter does not constitute a contract of service.
This agreement shall take effect from 15 July 2002, and is in substitution for
any other agreement, understanding or arrangement previously in place which are
hereby terminated by mutual consent.
This letter shall also govern the terms on which you may be appointed as a
non-executive director of any other Group Company. For the purposes of this
letter, 'Group Company' shall mean the Company, any company which is a
subsidiary or holding company of the Company and any company which is a
subsidiary of any such holding company.
the expressions 'subsidiary' and holding company' shall bear the respective
meanings set out in section 736 of the Companies Xxx 0000, as amended ("the
Act").
The "Board" shall mean the board of the Company from time to time.
1. TERM OF OFFICE
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Your continuance in office as a non-executive director of any Group Company will
be subject to the provisions governing retirement by rotation and other
provisions governing the resignation of directorships prescribed by the relevant
Group Company's Articles of Association. Your appointment will automatically
cease if you are not re-appointed or (as appropriate) re-elected as a director.
Subject to the above, your appointment as a non-executive director will continue
for a period of two years from the date of this Agreement or, if earlier, by
termination by either party giving to the other not less than 4 weeks' prior
notice in writing. Upon the termination of this Agreement for whatever reason
you will upon the request of the Company resign as a director of each Group
Company and in the event of your failure to do so your execution of the
acknowledgement below shall operate as your irrevocable authority to the Company
to appoint some person in your name and on your behalf to execute any document
and to do all things requisite to effect such resignations.
In the event that you are disqualified from acting as a director for any reason
(whether under the Act or any other legislation) or you cease to be a fit and
proper person or under the provisions of the
Articles of Association of the relevant Group Company, your appointment as
non-executive director of each Group Company will terminate immediately. On
termination of your appointment, for whatever reason, you will promptly return
to the Company all papers and property of any Group Company which are in your
possession.
2. FEES
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Subject to clause 3 below, you will be entitled to a fee at the rate of
(pound)20,000 per annum (plus V AT, if appropriate). The "year" of calculation
runs from 1 January to 31 December. The fee will be payable in arrears on the
last working day of each year by cheque and will be pro rated if services have
been provided for only part of the year. The fee covers your appointment as
non-executive director of the Company and any other Group Company (as
appropriate).
On termination of your appointment you will be paid your director's fee on a
pro-rata basis, to the extent unpaid, up to the date of termination.
3. SHARE ISSUE
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Provided you are still engaged hereunder and no notice of termination has been
given by either party we have agreed that you will ascribe (pound)6,500 of your
annual fee, each year, to the subscription for (pound)6,500 worth of ordinary
shares in the Company per annum. The value of the shares at the point of
subscription is to be calculated at the average quoted share price over the
preceding calendar year.
In the event that during the relevant calendar year, there shall have been any
subdivision, consolidation, conversion, issue by way of capitalisation of
profits or reserves, rights issue, capital distribution or other reorganisation
in respect of the ordinary share capital of the Company, then the average share
price for such year for the purposes of this Clause 3 shall be referred to the
Company's auditors who (acting as experts not arbitrators) shall in their
reasonable discretion determine such average price in such circumstances. The
shares will be issued to you on or before the last working day of each calendar
year.
In the event of a Company re-organisation or amalgamation you will be issued
with a corresponding category of shares in the new entity.
In the event of termination of this Agreement for whatsoever reason the
entitlement to receive further shares will cease immediately upon notice of
termination having been given by either party.
4. INDEMNITY
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You will be responsible for the payment of all taxes, whether withholding tax,
income tax or otherwise, payable on any remuneration including without
limitation benefits in kind provided hereunder and for National Insurance
contributions if applicable. You shall keep the Company indemnified from and
against any claims demands actions proceedings cost and expenses made brought
against or incurred by the Company in respect of any payments and benefits
referred to in this Clause.
5. EXPENSES
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You will be entitled to be reimbursed reasonable travelling expenses for
attendance at board meetings and general meetings in the UK, and any reasonable
accommodation expenses if the time or venue for the relevant Board meeting
necessitates any overnight stay away from your home. You should not incur any
other expenses for which you expect to be reimbursed without clearing the matter
with the Chief Executive of the Company before incurring that expense.
6. INSURANCE BENEFITS
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The Company shall pay all premium and do all other things to provide directors'
and officers' insurance (subject to the terms and conditions of insurance from
time to time) in relation to services provided by you hereunder until expiry of
this Agreement or earlier termination by either party for whatsoever reason. The
choice of insurance provider will be in the absolute discretion of the Board.
7. DUTIES
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General
As a non-executive director you will be expected to exercise the general
fiduciary duties and duties of care and confidentiality expected of every
director, but in particular your role will be to suggest, advise on and monitor
matters relating to:
(a) the strategy and performance of the Company or any Group Company; and
(b) present and future availability and use of resources; and
(c) corporate governance.
You will be required to accept responsibility, publicly and, where necessary, in
writing:
(a) when required to do so by the Act or the Financial Services Act;
(b) when required to do so under u.S. Federal securities law or the rules and
regulations of any automatic quotation system or stock exchange on which
the shares of the Company are quoted or listed;
(c) (if applicable) when required to do so by the City Code on Take-overs and
Mergers and The Rules Governing Substantial Acquisitions of Shares; and
(d) in any event, in the terms set out in the" Statement of Directors'
Responsibilities" which will be printed in the Company's Accounts.
Attendance at Meetings
You will be expected to attend at all regular Board meetings (usually 6 each
year), and all general meetings of the shareholders (including the AGM), and at
least two additional Board strategy meetings during the course of each year.
You will also be expected to attend all meetings ofthe Company's audit and
remuneration committees and take an active role in discharging the authorities
delegated to those committees by the Board. Copies of the specific terms of
reference for each of these committees are available from the Company Secretary.
Other activities
You may, from time to time, also be requested by the Board to undertake
additional duties in keeping with your role as a non-executive director of the
company to better further the interests of the Company. These may include
attending meetings with, and giving presentations to, financial institutions and
investors, attendance at conferences and conference speaking.
Other interests
While you hold office in the Company or any other Group Company, you should not
hold other directorships or shares in, nor should you be interested (directly or
indirectly in any capacity) in any contracts with any company or concern engaged
in the field in which the Company or any Group Company is involved, without
first disclosing the same to the Chief Executive of the Company and obtaining
his consent in writing. This restriction will not affect or apply to any
directorships, shares or other interests currently held by you and which you
formally disclose to the board of the Company at or prior to the first board
meeting to be attended by you following the execution by you of this letter nor
does it apply to shareholdings held or acquired at any time thereafter for
investment purposes only where the shares concerned are quoted or dealt in on a
recognised investment exchange and represent one per cent or less of the issued
shares of the class concerned.
8. ACCESS
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It is hereby confirmed on behalf of the Company that as a director:
(a) you will be given full access to all information about the Company and
each Group Company of which you are a director, and its affairs which
is available to other directors;
(b) you will be given reasonable advance notice of meetings.
9. GENERAL AND RESERVED MATTERS
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As a non-executive director, you should note that you do not have authority to
commit the Company or any Group Company in any way without the express
authorisation of the board or a committee thereof or save as agreed in writing
with the Chief Executive.
You will be entitled to the indemnification afforded to directors by the
Articles of Association of the Company and of any relevant Group Company.
Without prejudice to the provisions of paragraph 6(a) above, the following
matters shall only be undertaken with the sanction of the Board or a committee
thereof ("the Company" includes any Group Company for the purposes of this
clause 6( c) save where the context otherwise requires):
(i) the issue of any request or invitation to any encumbrance to appoint a
receiver (or similar officer) or otherwise to take possession of any
assets of the Company;
(ii) the consolidation or amalgamation of the Company with any other company,
association, partnership or legal entity;
(iii) the creation or acquisition of a subsidiary (as defined in section 736
of the Act) of the Company;
(iv) the acquisition of shares in any other company;
(v) the entry into any joint venture or partnership;
(vi) the establishment of any branch or representative office of the Company;
(vii) any sale, lease, transfer, mortgage, pledge or other disposition of the
undertaking of the Company or any part thereof;
(viii) the creation of any mortgage share pledge lien or other encumbrance over
any of the assets of the Company (save for liens and other encumbrances
arising by operation of law in the ordinary course of business of the
Company);
(ix) any guarantee or indemnity by the Company of the liabilities or debts of
any other person, firm or company;
(x) the obtaining of any borrowing or other financing required or desired by
the Company and the terms on which such borrowing or other financing are
procured and any variation in the Company's arrangements with its
bankers;
(xi) the payment of any management charges, service charges or similar
charges by the Company other than under any relevant management
agreement;
(xii) any loans by the Company to any of the members or to any subsidiary of a
member or associated companies and their directors (or their nominees);
(xiii) any transaction or disposition other than a bona fide transaction for
value at arm's length;
(xiv) any transaction or disposition involving a director of former director
of the Company or a person connected therewith as a party to the
transaction or disposition;
(xv) the entry into any long term or onerous contract otherwise than in the
ordinary course of business of the Company;
(xvi) all matters relating to the taxation affairs of the Company;
(xvii) the approval of any budgets of or the annual accounts interim or
preliminary results of the Company, the approval of any notice of
general meeting or the approval of any circulars to shareholders;
(xviii) the making of any distribution by way of dividend out of the profits of
the Company;
(xix) the appointment or removal of any Director of the Company;
(xx) the grant of any powers of attorney by the Company.
(d) Each of the sub-clauses set out in paragraph 6(e) of this letter shall
be construed separately and independently and accordingly no such
sub-clause shall be construed by reference to any other such sub-clause.
(e) Until otherwise advised in writing the Chief Executive of the Company
shall be Xx Xxxxxx Xxxxxxx.
10. CONFIDENTIALITY
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You shall at all times use all reasonable endeavours to keep confidential any
confidential information which you may acquire in relation to the Company or
Group Company or in relation to the clients, business or affairs of the Company
or Group Company and shall not use or disclose such information except with the
consent of the Company or, in the case of information relating to the Company,
in the ordinary course of advancing the business of the Company. The restriction
in this Clause 10 shall not apply to any information:
(a) which is publicly available or becomes publicly available through no action
by yourself;
(b) which was in your possession prior to its disclosure;
(c) which is disclosed to you by a third party which did not acquire the
information under an obligation or confidentiality; or
(d) which is disclosed in accordance with the requirements of law, any stock
exchange regulation or any binding judgment, order or requirement of any
court or other competent authority.
The provision of this Clause 10 shall survive any termination of this Agreement.
Please execute the enclosed duplicate of this letter signifying your acceptance
of the terms and conditions enclosed herein.
Yours sincerely
/s/ Sanjir Talvar
....................................
Director
For and on behalf of ebookers plc
I hereby acknowledge and agree to the terms set out above and, by way of
security, I hereby irrevocably appoint the Company and any of the Company's
delegates or sub-delegates to be my attorney in my name and on my behalf to
execute any document and to do all things requisite to effect my resignation
from office as a director of the Company and of any Group Company upon a
termination hereof and a request from the Company for such resignation as
contemplated in clause 2 above.
SIGNED AND DELIVERED AS A ) /s/ Xxxxxxx Sampler
DEED by the said Xxxxxxx Sampler )
in the presence of: )
Witness: Xxxxxx X. Xxxxx
Signature: /s/ Xxxxxx Xxxxx
ebookers plc
Name:
Address:
Occupation:
Date:
