EXHIBIT 4.12
DATED 23 April 2004
(1) PREMIER FARNELL PLC
(2) ▇▇▇▇▇▇▇▇ ▇▇▇▇
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SERVICE AGREEMENT
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Part 11 Income Tax (Earnings and ▇▇▇▇▇▇▇▇)
▇▇▇ ▇▇▇▇ and with any obligations to deduct
national insurance contributions;
"Pension Scheme" The Premier Farnell UK Pension Scheme;
"recognised investment has the meaning in Section 285 of the
exchange" Financial Services and Markets ▇▇▇ ▇▇▇▇;
"Termination Date" the date on which the Executive's employment
under this Agreement terminates and
references to "from the Termination Date"
mean from and including the date of
termination.
1.2 References herein to "clauses" and "sub-clauses" are to clauses and
sub-clauses of this Agreement unless otherwise specified.
1.3 Unless otherwise required words denoting the singular include the plural
and vice versa.
1.4 References in this Agreement to statutory provisions include all
modifications and re-enactments of them and all subordinate legislation
made under them.
1.5 Clause headings are included in this Agreement for convenience only and do
not affect its construction.
2. PREVIOUS AGREEMENTS
2.1 This Agreement contains the entire and only agreement and will govern the
relationship between the Company and the Executive from the Commencement
Date in substitution for all previous agreements and arrangements whether
written, oral or implied between the Company or any Group Company and the
Executive relating to the services of the Executive all of which will be
deemed to have terminated by consent with effect from the Commencement
Date.
2.2 The Executive and the Company acknowledge that in entering into this
Agreement neither has relied on any representation or undertaking by the
other whether oral or in writing except as expressly incorporated in this
Agreement. The Company will not be liable for any misrepresentation by it
or any Group Company before the Commencement Date made innocently or
negligently and any remedy of the Executive in respect of any
representation which is untrue made before the Commencement Date will be
limited to damages for breach of contract.
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THIS AGREEMENT is made the 23 day of April 2004
BETWEEN
(1) PREMIER FARNELL PLC whose registered office is at ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the Company") and
(2) ▇▇▇▇▇▇▇▇ ▇▇▇▇ of ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇
("the Executive")
WHEREBY IT IS AGREED as follows:
1. MEANING OF WORDS USED
1.1 In this Agreement the following expressions have the following meanings:
"Board" the Board of Directors of the Company from time
to time and any other person or persons
authorised by the Board as its representative
for the purposes of this Agreement including
without limitation the Remuneration Committee;
"Commencement Date" the date of this Agreement;
"Group Company" any holding company from time to time of the
Company or any subsidiary from time to time of
the Company or of any such holding company (for
which purpose "holding company" and
"subsidiary" have the meanings ascribed to them
by Section 736 of the Companies ▇▇▇ ▇▇▇▇ as
amended by the Companies Act 1989);
"Group" the Company and every Group Company wherever
registered or incorporated;
"the 1996 Act" the Employment Rights ▇▇▇ ▇▇▇▇;
"holiday year" the period of 12 months from 1 January to 31
December;
"PAYE deductions" deductions made to comply with or meet any
liability of the Company to account for tax
pursuant to regulations made under Chapter 2 of
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3. APPOINTMENT, DURATION AND NOTICE
3.1 The Company will employ the Executive and the Executive will serve the
Company as Chief Operating Officer, reporting to the Group Chief
Executive.
3.2 The said appointment commenced on 29 July 2002 and will continue subject
as follows unless and until the employment is terminated either by the
Company giving to the Executive not less than 12 calendar months' written
notice or by the Executive giving to the Company not less than 6 calendar
months' written notice to expire at anytime.
3.3 Without prejudice to clauses 17.1 and 17.2 at its absolute discretion the
Company may terminate this Agreement and the employment of the Executive
with immediate effect at any time by giving him written notice and in full
and final settlement of all claims which he has or may have against the
Company, or any Group Company or any director, employee or agent of the
Company or any Group Company under or arising out of his employment with
the Company or any such Group Company, the termination of his employment
(including without limitation his right to notice pursuant to clause 3.2)
or otherwise, in such event the Company will:
3.3.1 pay him a termination payment (less PAYE deductions) equivalent to
his basic salary under clause 7.1 at the rate applicable at the
Termination Date; and
3.3.2 either continue to provide him with his contractual benefits
(excluding pension and bonus), subject in each case to the agreement
of the relevant benefits provider and to the rules of the scheme
from time to time; or
3.3.3 pay him the equivalent of the taxable value (or the cost to the
Company if none) of any contractual benefits (excluding pension
benefits and bonus) which are not continued pursuant to clause
3.3.2; and
3.3.4 within 14 days of the Termination Date, pay to the Trustees of the
Pension Scheme a special contribution on behalf of the Executive
equivalent to the contributions the Company would otherwise have
made to the Pension Scheme (provided that the Executive first pays
to the Trustees of the Pension Scheme the contributions he would
otherwise have been obliged to make during the relevant period) and
pay to the Executive a special contribution to the FURBS referred
to in clause 10.2 equivalent to the contributions the Company would
otherwise have made to the FURBS during the relevant period.
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in each case for the period from the Termination Date until the expiry of
notice required under clause 3.2 or the Executive's 60th birthday if
earlier. For the avoidance of doubt the Executive's employment will
terminate on the date specified in the notice given by the Company
pursuant to this clause.
3.4 Notwithstanding the provisions of clause 3.2, the Executive's employment
under this Agreement will automatically terminate on his 60th birthday.
3.5 The Executive's continuous employment with the Company for the purposes of
the 1996 Act commenced on 29 July 2002. No employment with a previous
employer counts for the purposes of the 1996 Act as part of the
Executive's period of continuous employment.
4. DUTIES
4.1 The Executive will carry out such duties and functions, exercise such
powers and comply with such instructions in connection with the business
of the Company and the Group as the Board reasonably determines from time
to time. Except when prevented by illness, accident or holiday as provided
below the Executive will devote such of his time as may reasonably be
required and all of his attention and skill to the affairs of the Company
and where appropriate the Group and use his best endeavours to promote
their interests.
4.2 The Executive will if and so long as he is so required by the Company
carry out duties for and/or act as a director, officer or employee of any
other Group Company. The duties attendant on any such appointment will be
carried out by the Executive as if they were duties to be performed by him
on behalf of the Company under this Agreement.
4.3 The Executive will at all times promptly give to the Board (in writing if
requested) all information, explanations and assistance that the Board may
require in connection with the business or affairs of the Company and the
Group and his employment under this Agreement.
4.4 Without prejudice to clause 17.2 the Board may at any time require the
Executive to cease performing and exercising all or any of such duties,
functions or powers.
5. PLACE OF WORK
5.1 The Executive will perform his duties principally at the London head
office of the Company and at such other place or places as the Company
reasonably requires. The
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Executive may be required to travel both inside and outside the United
Kingdom in the course of his duties.
6. HOURS OF WORK
6.1 The Company's normal office hours are from 9 am to 5 pm Monday to Friday
but the Executive will be required to work outside these hours without
additional remuneration in order to meet the requirements of the business
and for the proper performance of his duties. In view of the Executive's
seniority and managerial duties and responsibilities, the Executive is
regarded as a "managing executive" for the purposes of the Working Time
Regulations 1998.
7. REMUNERATION
7.1 The Company will pay the Executive a salary at the rate of L243,800
per annum (or at such rate as may from time to time be notified to him by
the Board) which salary will accrue from day to day and be payable in
arrears by equal monthly instalments by the last day of each month.
7.2 The Executive's salary will be subject to reviews by the Remuneration
Committee of the Board which will be effective on and from 1 July in each
year during the Executive's employment under this Agreement provided that
the increase (if any) of such salary will be a matter to be decided at the
Remuneration Committee's absolute discretion. The fact that the
Executive's salary may be increased in any year or years during his
employment does not confer any right on the Executive to receive any
increase in any subsequent year.
7.3 The salary referred to in clause 7.1 will be inclusive of any director's
fees to which the Executive may be entitled as a director of the Company
or of any Group Company.
7.4 At the absolute discretion of the Board, the Executive may be allowed to
participate in such bonus scheme or schemes as the Company operates for
executives of comparable status to incentivise performance and reward
future loyalty and on such terms (including any performance targets or
criteria) as the Board may determine from time to time. Participation in
or payments under any such scheme for any year will not confer on the
Executive any right to participate or to be paid the following year or any
subsequent years. Any payments are conditional on the Board being
reasonably satisfied with the Executive's performance and conduct up to
the date of payment. No payment will be made under any scheme if, on the
payment date the Executive has given, or has been given, notice of
termination of employment or is no
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longer employed by the Company, save where the Executive has retired with
the agreement of the Company or the Executive's employment has been
terminated in breach of this Agreement, in which case a payment will be
made in accordance with the rules of the bonus scheme in respect of the
number of full calendar months for which the Executive was employed during
the relevant financial year of the Company. Any such scheme is entirely
discretionary in nature and is not incorporated by reference into this
Agreement. Bonus payments are non-pensionable and are subject to PAYE
deductions.
8. EXPENSES
8.1 The Executive will be reimbursed all out of pocket expenses reasonably and
properly incurred by him in the performance of his duties under this
Agreement on hotel, travelling, entertainment and other similar items
provided that he complies with the Company's then current guidelines
relating to expenses and if and when required by the Company produces to
the Company satisfactory evidence of expenditure.
9. MOTOR CAR
9.1 During the Executive's employment under this Agreement and whilst the
Executive is legally entitled to drive the Company will provide him with a
motor car or a monthly cash car allowance in accordance with the Company's
Car Policy as amended from time to time. The Company will pay all costs of
road fund licence, insurance premiums and running expenses in respect of
the motor car including fuel, oil, maintenance and repairs.
9.2 The Executive will be permitted use of the motor car for his own private
purposes (including use on holidays).
9.3 The Executive will take good care of the motor car and will observe the
terms and conditions of any policy of insurance and all regulations issued
from time to time by the Company regarding the use of motor cars provided
to its officers or employees.
9.4 On the termination of his employment under this Agreement for any reason
the Executive will immediately return the motor car, its keys and all
documents relating to it to the Company at its principal place of business
or as otherwise directed by the Company.
10. Pension and other benefits
10.1 The Executive will be entitled to continue to be a member of the Pension
Scheme subject to and upon the trust deed and rules of the Pension Scheme
from time to time
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in effect (including without limitation any powers of alteration and
discontinuance). There is no contracting out certificate in force in
respect of the Executive's employment under the provisions of the ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇.
10.2 In addition, the Company will continue to make contributions to a funded
unapproved retirement benefits scheme ("FURBS") in respect of the
Executive's earnings above the Inland Revenue Earnings cap. The FURBS has
been established under a separate trust deed and rules.
10.3 The total contributions from the Company to the Pension Scheme and the
FURBS will be equal to 27% of the Executive's basic salary, provided that
the Executive makes contributions equal to 5% of his basic salary.
10.4 During his employment the Executive will be entitled to participate at the
Company's expense in the Company's:
10.4.1 life insurance scheme providing a lump sum of four times the
Executive's salary under clause 7.1 from tune to time in the event
of the death in service of the Executive before the age of 60 and
additional insurance providing a lump sum of L1.3 million on
the Executive's death in service before the age of 60 (the amount
of such additional insurance to be reviewed each three years from
29 July 2002);
10.4.2 private medical expenses insurance scheme for the benefit of the
Executive and his wife and all children under the age of 21;
10.4.3 permanent health insurance scheme providing a payment of up to two
thirds of the Executive's salary under clause 7.1 after 28 weeks of
continuous absence through ill health or injury for the period up
to age 60
subject to the rules of the said schemes from time to time (and any
replacement schemes provided by the Company) and subject to the Executive
(and where appropriate his wife and dependent children) being eligible to
participate in or benefit from such schemes pursuant to their rules at a
cost which is acceptable to the Company.
10.5 The Executive will be responsible for any tax liability arising in respect
of the Inland Revenue unapproved elements of the pension and life
insurance arrangements referred to in this clause 10.
10.6 The Executive may be invited to participate in the Company's share option
schemes or performance share plans ("the Share Schemes") in accordance
with their rules
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from time to time ("the Rules"). Any participation will be voluntary and
will not constitute a contractual entitlement under this Agreement or give
rise to any rights or remedies against the Company. By participating the
Executive will be deemed irrevocably to have waived any such entitlement,
rights or remedies, In particular, but without prejudice to the above, if
the Executive's employment terminates for any reason and his options,
rights or expectations (if any) under the Share Schemes lapse or are
otherwise lost or altered pursuant to the Rules, the Executive will not be
entitled to damages for wrongful dismissal or breach of contract,
compensation for unfair dismissal or otherwise to any sum or other
benefits to compensate him in respect of any loss under the Share Schemes
that he may suffer as a result.
11. HOLIDAYS
11.1 In addition to normal public holidays the Executive will be entitled to 25
working days' paid holiday in each holiday year, such holiday to be taken
at such time or times as may be approved by the Group Chief Executive.
11.2 In each holiday year (apart from the year in which the Executive's
employment commences or terminates) the Executive will be expected to take
at least the 20 days' holiday (including normal public holidays) to which
he is entitled under the Working Time Regulations 1998.
11.3 Subject to clause 11.2, the Executive may carry forward to the following
holiday year with the Group Chief Executive's written approval up to 5
days' unused holiday entitlement but he must take any holiday which is
carried forward before the end of March in that year. Any holiday
entitlement which is not taken in accordance with this clause 7 will be
lost and may not be further carried forward.
11.4 Where the Executive has taken more or less than his holiday entitlement in
the year his employment terminates, a proportionate adjustment will be
made by way of addition to or deduction from (as appropriate) his final
gross pay calculated on a pro-rata basis.
12. INCAPACITY
12.1 If the Executive is absent from his duties as a result of illness or
injury he will notify the Group Chief Executive as soon as possible and
complete any self-certification forms which are required by the Company.
If the incapacity continues for a period of seven days or more he will
produce to the Company a medical certificate to cover the duration of such
absence.
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12.2 Subject to the rest of clause 12 and to clause 17.1.7 and subject to the
receipt of the appropriate certificates in accordance with clause 12.1, if
the Executive is absent from his duties as a result of illness or injury
he will be entitled to payment of his basic salary at the full rate and
enjoy his benefits hereunder in respect of such illness or injury for a
period (in total) of up to 28 weeks in any period of 12 months (whether
the absence is intermittent or continuous). Thereafter during sickness
absence the Executive will not be entitled to any further salary or
benefits ((other than any medical expenses or permanent health insurance
provided by the Company) including without limitation provision of a car)
until he has returned to work.
12.3 If the Executive is absent from work because of any injury or condition
(physical or mental and whether or not sustained in the course of his
duties) caused wholly or partly by any act or omission of any third party
(other than the Company or any Group Company) and recovers damages or
compensation from such party, the Executive will repay immediately to the
Company a sum equivalent to the amount (if any) of any such damages or
compensation which relates to any period of absence during which the
Executive received salary from the Company pursuant to clause 12.2.
12.4 If the Executive has been absent from work because of any injury or
condition (physical or mental) caused wholly or partly by the Company or
any Group Company or any person for whom the Company or any Group Company
is vicariously liable and for which the Executive may be or become
entitled to recover damages or compensation, any such damages or
compensation payable will be reduced by the amount of any salary
(including Statutory Sick Pay) paid to him and by the pension received or
receivable by him in the period in respect of which such damages or
compensation are calculated.
12.5 The Executive's basic salary paid under clause 12.2 will include any
Statutory Sick Pay payable and when this is exhausted will be reduced by
the amount of any Social Security Sickness Benefit or other benefits
recoverable by the Executive (whether or not recovered).
12.6 Without prejudice to the Company's right to terminate this Agreement
pursuant to clause 17.1.1 to 17.1.6 inclusive, the Company agrees not to
terminate this Agreement during any period of sickness absence before
Company sick pay payable pursuant to clause 12.2 has been exhausted and/or
if such termination would prejudice or limit the Executive's rights or
prospective rights under the Company's permanent health insurance scheme
referred to in clause 10.4.3.
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12.7 Whether or not the Executive is absent by reason of sickness, injury or
other incapacity the Executive will at the request of the Board agree to
have a medical examination performed by a doctor appointed and paid for by
the Company and the Executive hereby authorises the Board to have
unconditional access to any report or reports (including copies) produced
as a result of any such examination as the Board may from time to time
require and entitlements to salary pursuant to clause 12.2 will be
conditional on the Executive complying with the terms of this clause 12.7.
13. CONFLICT OF INTERESTS
13.1 The Executive will disclose promptly to the Board in writing all his
interests in any business other than that of the Company and the Group and
will notify the Board immediately of any change in his external interests.
Except with the written consent of the Board the Executive will not during
his employment under this Agreement be directly or indirectly engaged,
concerned or interested whether as principal, servant or agent (on his own
behalf or on behalf of or in association with any other person) in any
other trade, business or occupation other than the business of the Company
or any Group Company. This clause will not prevent the Executive from
being interested for investment purposes only as a member, debenture
holder or beneficial owner of any stock, shares or debentures which are
listed or dealt in on a recognised investment exchange and which do not
represent more than four per cent. of the total share or loan capital from
time to time in issue in such company.
13.2 The Executive will not during his employment introduce to any other
person, firm, company or organisation business of any kind with which the
Company or any other Group Company for which he has performed services
under this Agreement is able to deal and he will not have any financial
interest in, or derive any financial or other benefit from, contracts or
transactions entered into by the Company or any other Group Company for
which he has performed services under this Agreement with any third party
without first disclosing such interest or benefit to the Board and
obtaining its written approval.
13.3 The Executive will comply with every rule of law, every regulation of the
Financial Services Authority and every requirement, recommendation or
regulation of the Company from time to time in force (including the
Company's Dealing Rules) in relation to dealings with 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 such company. In relation to overseas dealings, the
Executive will also comply with all laws of the state and all regulations
of the stock exchange, market or dealing system in which such dealings
take place.
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14. RESTRICTIVE COVENANTS
14.1 In this clause 14 the following expressions have the following meanings:
"Critical Person" any person who was an employee, agent, director,
consultant or independent contractor employed,
appointed or engaged by the Company or any
Relevant Group Company at any time within the
Relevant Period who by reason of such employment,
appointment or engagement and in particular
his/her seniority and expertise or knowledge of
trade secrets or confidential information of the
Company or any Group Company or knowledge of or
influence over the clients, customers or suppliers
of the Company or any Group Company is likely to
be able to assist or benefit a business in or
proposing to be in competition with the Company or
any Relevant Group Company;
"Products or Services" products or services which are of the same kind as
or of a materially similar kind to or competitive
with any products or services sold or supplied by
the Company or any Relevant Group Company within
the Relevant Period;
"Relevant Customer" any person, firm, company or organisation who or
which at any time during the Relevant Period is or
was:
(i) negotiating with the Company or a Relevant
Group Company for the sale or supply of
Relevant Products or Services; or
(ii) a client or customer of the Company or any
Relevant Group Company for the sale or
supply of Relevant Products or Services; or
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(iii) in the habit of dealing with the Company or
any Relevant Group Company for the sale or
supply of Relevant Products or Services
and in each case with whom or which the Executive
was directly concerned or connected or of whom or
which the Executive had personal knowledge during
the Relevant Period in the course of his
employment hereunder;
"Relevant Group any Group Company (other than the Company) for
Company" which the Executive has performed services under
this Agreement or for which he has had operational
or management responsibility at any time during
the Relevant Period;
"Relevant Period" the period of 12 months immediately before the
Termination Date or (where such provision is
applied) the commencement of any period of
exclusion pursuant to clause 17.2 if earlier;
"Relevant Products or Products or Services with which sale or supply the
Services" Executive was directly concerned or connected or
of which he had personal knowledge during the
Relevant Period in the course of his employment
hereunder;
"Restricted Territory" any area or territory in which the Executive
worked or to which the Executive was assigned by
the Company or any Relevant Group Company or for
which the Executive had operational or management
responsibility at any time during the Relevant
Period.
14.2 The Executive will not without the prior written consent of the Company
directly or indirectly and whether alone or in conjunction with or on
behalf of any other person and whether as a principal, shareholder,
director, employee, agent, consultant, partner or otherwise:
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14.2.1 within the Restricted Territory for a period of 12 months from the
Termination Date be employed, engaged, concerned or interested in
or provide technical, commercial or professional advice to any
other business which supplies Relevant Products or Services in
competition with the Company or any Relevant Group Company provided
that this restriction does not apply to prevent the Executive from:
(i) undertaking duties or activities which are materially different
from those undertaken by him during the Relevant Period in the
performance of his duties hereunder; or (ii) holding shares or
other securities in any company which is quoted, listed or
otherwise dealt in on a recognised investment exchange or other
securities market and which confer not more than four per cent. of
the votes which could be cast at a general meeting of such company;
or
14.2.2 for a period of 12 months from the Termination Date cause any
business which at any time during the Relevant Period has supplied
products or services to the Company or any Relevant Group Company
or attempt to do anything which causes or may cause such supplier
to cease, alter or materially to reduce its supplies to the Company
(or any Relevant Group Company as the case may be); or
14.2.3 for a period of 12 months from the Termination Date cause any
business which is or was at any time during the Relevant Period a
Relevant Customer of the Company or any Relevant Group Company or
do or attempt to do anything which causes or may cause the Relevant
Customer to cease or materially to reduce its orders or contracts
with the Company or any Relevant Group Company; or
14.2.4 for a period of 12 months from the Termination Date so as to
compete with the Company or any Relevant Group Company canvass,
solicit or approach or cause to be canvassed, solicited or
approached any Relevant Customer for the sale or supply of Relevant
Products or Services or endeavour to do so; or
14.2.5 for a period of 12 months from the Termination Date so as to
compete with the Company or any Relevant Group Company deal or
contract with any Relevant Customer in relation to the sale or
supply of any Relevant Products or Services, or endeavour to do so;
or
14.2.6 except with the prior written consent of the Company, for a period
of 12 months from the Termination date solicit, induce or entice
away from the Company or any Relevant Group Company or, in
connection with any
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business in or proposing to be in competition with the Company or
any Relevant Group Company, employ, engage or appoint or in any way
cause to be employed, engaged or appointed a Critical Person
whether or not such person would commit any breach of his or her
contract of employment or engagement by leaving the service of the
Company or any Relevant Group Company provided that this
restriction shall not apply to a Critical Person who has been made
redundant or otherwise been given notice of termination of their
employment with the Company or Relevant Group Company; or
14.2.7 use in connection with any business any name which includes the
name of the Company or any Group Company or any colourable
imitation of it.
14.3 Whilst the restrictions in this clause 14 are regarded by the parties as
fair and reasonable, it is hereby declared that each of the restrictions
in this clause 14 is intended to be separate and severable. If any
restriction is held to be unreasonably wide but would be valid if part of
the wording (including in particular but without limitation the defined
expressions referred to in clause 14.1) were deleted, such restriction
will apply with so much of the wording deleted as may be necessary to make
it valid.
14.4 The parties agree that the periods referred to in sub-clauses 14.2.1,
14.2.2, 14.2.3, 14.2.4 and 14.2.5 above will be reduced by one day for
every day during which at the Company's direction and pursuant to clause
17.2 below the Executive has been excluded from the Company's premises
and/or has not carried out any duties or has carried out duties other than
his normal duties.
14.5 If the Executive breaches any of the provisions in this clause 14 the
Company will be entitled by written notice to the Executive to extend the
period during which the provisions of clause 14 which have been breached
apply by an equivalent period to that during which the breach or breaches
have continued, such additional period to commence on the date on which
the said period would have otherwise expired. The Executive hereby agrees
that if the Company so extends the period of any such restriction, this
will not prejudice the right of the Company to apply to the Courts for
injunctive relief in order to compel the Executive to comply with the
provisions of this clause 14 and/or damages, as the case may be.
14.6 For the purposes of clause 14 and 15 the Company has entered into this
Agreement as agent for and trustee of all Relevant Group Companies and all
Group Companies respectively.
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15. CONFIDENTIALITY
15.1 The Executive acknowledges that in the ordinary course of his employment
he will be exposed to information about the business of the Company and
the Group and that of the Company's and the Group's 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 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
15.
15.2 The Executive will not during the period of his employment with the
Company obtain or seek to obtain any financial advantage (direct or
indirect) from the disclosure of information acquired by him in the course
of his employment with the Company.
15.3 The Executive will not either during his employment (including without
limitation any period of absence or of exclusion pursuant to clause 17.2)
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 officials of any Group Company
who are entitled to know, 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.
15.4 The restrictions contained in this clause do not apply to:
(i) any disclosure authorised by the Board or required in the ordinary
and proper course of the Executive's employment or required by the
order of a court of competent jurisdiction or by an appropriate
regulatory authority or as otherwise required by law;
(ii) any information which the Executive can demonstrate is in the public
domain otherwise than as a result of a breach by him of this clause;
or
(iii) protected disclosures made pursuant to and in accordance with the
Public ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ and/or any policy on disclosure
operated by the Company from time to time.
15
15.5 The provisions of this clause 15 are without prejudice to the duties and
obligations of the Executive to be implied into this Agreement at common
law. The Executive hereby agrees that at the request and expense of the
Company he will enter into a direct agreement or undertaking with any
other Group Company whereby he will accept restrictions and provisions
corresponding to the restrictions and provisions in clauses 14 and 15 (or
such of them as may be appropriate in the circumstances) in relation to
such information and such area and for such period as such Group Company
may reasonably require for the protection of its legitimate interests.
16. INTELLECTUAL PROPERTY RIGHTS
16.1 In this clause 16 "Intellectual Property" means any:
(i) concept, discovery, invention, process, procedure, development or
improvement in process or procedure;
(ii) data, design, formula, model, plans, drawings, documentation,
database, computer program or software (including related
preparatory and design materials) whether registrable or not and
whether or not copyright or design rights subsist in it; and
(iii) idea, method, information or know-how
which is made, discovered, created or generated by the Executive whether
alone or with others and whether or not in the course of his employment
which relates to or affects the business of the Company or any Group
Company or which is capable of being used or adapted for use in connection
with any such company.
16.2 Without prejudice to the provisions of the Patents ▇▇▇ ▇▇▇▇, the Copyright
Designs and Patents ▇▇▇ ▇▇▇▇ and any other applicable legislation:
16.2.1 the Executive must immediately disclose to the Company full details
of any Intellectual Property;
16.2.2 if the rights in the Intellectual Property belong to the Company or
are capable of doing so, the Executive will act as trustee for the
Company in relation to them;
16.2.3 if requested by the Board whether during his employment or after
the Termination Date the Executive will at the expense of the
Company do everything necessary (including executing documents) to:
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(i) protect all current and future rights in the Intellectual
Property (by applying for letters patent or other appropriate
form of protection) in the United Kingdom or any other part of
the world;
(ii) vest, transfer or assign such protection or right as the case
may be to the Company or its nominee with full title guarantee
and the right to ▇▇▇ for past infringement and recover
damages; and
(iii) to provide all reasonable assistance as the Company may
require to obtain, maintain or enforce rights to the
Intellectual Property;
16.2.4 the Executive hereby irrevocably and unconditionally waives in
favour of the Company the moral rights conferred on him by the
Copyright Designs and Patents ▇▇▇ ▇▇▇▇ in respect of any
Intellectual Property right in which the copyright is vested in the
Company under this clause or otherwise;
16.2.5 the Executive hereby irrevocably authorises the Company to appoint
a person to execute any documents and to do everything necessary to
effect his obligations under this clause on his behalf.
17. TERMINATION
17.1 The Company may terminate the Executive's employment immediately by
summary notice in writing without compensation (notwithstanding that the
Company may have allowed any time to elapse or on a former occasion may
have waived its rights under this clause) if he:
17.1.1 fails or neglects efficiently and diligently to carry out his
duties under this Agreement or commits, repeats or continues any
serious breach of this Agreement or his obligations under it;
17.1.2 in the performance of his duties under this Agreement commits any
act of gross misconduct or serious incompetence;
17.1.3 prejudices or because of his behaviour is likely in the reasonable
opinion of the Board to prejudice the interests or reputation of
the Executive, the Company or any Group Company;
17.1.4 is charged with or is convicted of any criminal offence other than
an offence which does not in the reasonable opinion of the Board
affect his position under this Agreement;
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17.1.5 becomes bankrupt or enters into or make any arrangement or
composition with or for the benefit of his creditors generally;
17.1.6 becomes prohibited by law from being a director of a company or if
the Executive ceases to be a director of the Company without the
consent or concurrence of the Board; or
17.1.7 becomes incapacitated from performing all or any of his duties
under this Agreement by illness or injury (physical or mental) for
a period exceeding (in total) 28 weeks (or such longer period as
the Company may agree) in any period of 12 months provided that at
the Termination Date the Executive's entitlement to Company sick
pay under clause 12.2 has been exhausted and subject to clause
12.6.
17.2 Without prejudice to clause 4.1 after notice of termination has been given
by either party pursuant to clause 3.2 or if the Executive seeks to or
indicates an intention to resign as a director of the Company or any Group
Company or terminate his employment without notice, provided that the
Executive continues to be paid and enjoys his full contractual benefits
until his employment terminates in accordance with the terms of this
Agreement, the Board may in its absolute discretion without breaking the
terms of this Agreement or giving rise to any claim against the Company or
any Group Company for all or part of the notice period required under
clause 3.2:
(i) exclude the Executive from the premises of the Company and/or any
Group Company;
(ii) require him to carry out specified duties (consistent with the
Executive's status, role and experience) for the Company or to carry
out no duties;
(iii) announce to employees, suppliers and customers and to a regulatory
information service that he has been given notice of termination or
has resigned (as the case may be);
(iv) instruct the Executive not to communicate orally or in writing with
suppliers, customers, employees, agents or representatives of the
Company or any Group Company until his employment hereunder has
terminated.
For the avoidance of doubt, the Executive's duties and obligations under
clauses 4, 13, 15 and 16 and those to be implied into this Agreement at
common law continue to apply during any period of exclusion pursuant to
this clause.
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17.3 On commencement of any period of exclusion pursuant to clause 17.2 the
Executive will:
(i) deliver up to the Company in accordance with clause 19 all property
belonging to the Company or any Group Company; and
(ii) resign in accordance with clause 20 from all offices and
appointments he holds in the Company and any Group Company.
17.4 During any period of exclusion pursuant to clause 17.2 the Executive will
not be entitled to accrue any holiday other than his entitlement under the
Working Time Regulations 1998 referred to in clause 11.2. Any untaken
holiday entitlement accrued or likely to accrue up to the Termination Date
should be taken during the period of exclusion. The Executive agrees to
notify the Company of any day or days during the exclusion period when he
will be unavailable due to holiday and will endeavour to agree convenient
holiday dates in advance with the Board.
17.5 Before and after termination of the Executive's employment, the Executive
will provide the Company and/or any Group Company with reasonable
assistance regarding matters of which he has knowledge and/or experience
in any proceedings or possible proceedings in which the Company and/or
Group Company is or may be a party.
17.6 The Executive agrees that at the expense and request of the Company and in
any event on termination of his employment he will transfer or procure the
transfer of all shares held by him in trust or as a nominee by virtue of
his employment with the Company to such person or persons as the Company
may direct. If the Executive fails to do so within seven days of any such
request or the termination of his employment (as the case may be) the
Company is irrevocably authorised to appoint a person or persons to
execute all necessary transfer forms and other documentation on his
behalf.
18. DEDUCTIONS
18.1 The Executive hereby authorises the Company to deduct from his
remuneration (which for this purpose includes salary, pay in lieu of
notice, commission, bonus, holiday pay and sick pay) all debts owed by the
Executive to the Company or any Group Company, including but without
limitation the balance outstanding of any loans (and interest where
appropriate) advanced by the Company to the Executive.
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19. DELIVERY OF DOCUMENTS AND PROPERTY
19.1 On termination of his employment for any reason (or earlier if requested)
the Executive will immediately deliver up to the Company all property
(including but not limited to documents and software, credit cards, mobile
telephone, computer equipment, facsimile machine, keys and security
passes) belonging to it or any Group Company in the Executive's possession
or under his control. Documents and software include (but are not limited
to) correspondence, diaries, address books, databases, files, reports,
minutes, plans, records, documentation or any other medium for storing
information. The Executive's obligations under this clause include the
return of all copies, drafts, reproductions, notes, extracts or summaries
(however stored or made) of all documents and software.
20. RESIGNATION AS DIRECTOR
20.1 The Executive will on termination of his employment for any reason at the
request of the Board give notice resigning immediately without claim for
compensation (but without prejudice to any claim he may have for damages
for breach of this Agreement):
20.1.1 as a director of the Company and all such Group Companies of which
he is a director; and
20.1.2 all trusteeships held by him of any pension scheme or other trusts
established by the Company or any Group Company or any other
company with which the Executive has had dealings as a consequence
of his employment with the Company.
20.2 If notice pursuant to clause 20.1 is not received by the relevant company
within seven days of a request by the Company, the Company is irrevocably
authorised to appoint a person to execute any documents and to do
everything necessary to effect such resignation or resignations on the
Executive's behalf.
20.3 Except with the prior written agreement of the Board, the Executive will
not during his employment under this Agreement resign his office as a
director of the Company or any Group Company and if he does so without the
consent or concurrence of the Board, the Company will be entitled to
terminate his employment pursuant to clause 17.1.6 or at the Company's
absolute discretion, to treat such resignation as notice of termination
given by the Executive to the Company pursuant to clause 3.2 and to
suspend the Executive pursuant to clause 17.2.
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20.4 The Executive's appointment as a director of the Company or any other
Group Company will be subject to the Articles of Association from time to
time of the relevant company.
21. RIGHTS FOLLOWING TERMINATION
21.1 The termination of the Executive's employment under this Agreement will
not affect any of the provisions of this Agreement which expressly operate
or lawfully have effect after termination and will not prejudice any right
of action already accrued to either party in respect of any breach of any
terms of this Agreement by the other party (except in the case of
termination by the Company pursuant to clause 3.3 in which case clause 3.3
will prevail in favour of the Company and the Group).
22. DISCIPLINARY AND GRIEVANCE PROCEDURES
22.1 The Company's disciplinary and grievance procedures are [available from
the Company Secretary/Human Resources Department/posted on the intranet].
The spirit and principles of these procedures apply to the Executive
suitably adapted to reflect his seniority and status. Except and to the
extent of any procedure implied by statute the Company's disciplinary and
grievance procedures are not incorporated by reference in this Agreement
and therefore do not form any part of the Executive's contract of
employment.
22.2 Disciplinary issues will be handled by the Group Chief Executive with
appeals to the Chairman of the Board. The Company may invoke the
disciplinary procedure at any stage it being recognised that warnings will
not generally be appropriate in view of the Executive's seniority.
22.3 If the Executive has a grievance in relation to his employment or is
dissatisfied with a disciplinary decision against him he may apply in
writing to the Group Chief Executive who will decide the matter in
question (unless the grievance or dissatisfaction relates to the Group
Chief Executive or any decision taken by him/her). If the Executive is
dissatisfied with such decision (or if the grievance or dissatisfaction
relates to the Group Chief Executive or any decision taken by him/her) he
may refer the matter to the Chairman of the Board whose decision will be
final.
23. THIRD PARTY RIGHTS
23.1 Apart from the provisions of this Agreement which are expressly or
impliedly entered into by the Company for itself and as agent of and
trustee for any Group
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Company the parties do not intend that this Agreement should confer any
right or benefit on any third party.
24. DATA PROTECTION
24.1 For the purposes of the Data Protection Act 1998 (as amended), the
Executive gives his consent to the holding, processing and accessing of
personal data provided by him to the Group for all purposes relating to
the performance of this Agreement including but not limited to:
24.1.1 administering and maintaining personal records;
24.1.2 paying and reviewing salary and other remuneration and benefits;
24.1.3 providing and administering benefits (including, if relevant,
pension, life assurance, permanent health insurance and medical
insurance); undertaking performance appraisals and reviews;
24.1.4 maintaining sickness, holiday and other absence records;
24.1.5 equal opportunities matters including the operation of an equal
opportunities policy;
24.1.6 taking decisions about the Executive's fitness for work;
24.1.7 carrying out performance appraisals and development reviews;
24.1.8 providing references and information to future employers;
24.1.9 providing information to governmental and quasi-governmental
bodies for social security and other purposes, the Inland
Revenue and the Contributions Agency;
24.1.10 recording the commission or alleged commission of any
offence;
24.1.11 providing information to future purchasers of any Group
Company or of the business(es) in which the Executive works;
and
24.1.12 transferring information concerning the Executive to a
country or territory outside the EEA.
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25. INDEMNITY
25.1 The Executive will be indemnified by the Company in accordance with any
provisions of the Company's articles of association (as amended or
replaced from time to time) providing for the indemnification of directors
out of the assets of the Company. In addition, the Company has directors'
and officers' liability insurance and it is the Company's current
intention to maintain such insurance.
26. NOTICES
26.1 Notices under this Agreement by the Executive to the Company should be
addressed to the Company and left at its registered office or sent by
first class post or by facsimile transmission or other form of electronic
delivery to its registered office and notices given by the Company to the
Executive should be served personally or sent by first class post or sent
by facsimile transmission or other form of electronic delivery to his
usual or last known place of residence in England. In case of service by
post, the day of service will be 48 hours after posting and in the case of
facsimile transmission or other electronic delivery the day of service
will be the day of transmission by the sender.
27. MISCELLANEOUS
27.1 This Agreement will be governed by and interpreted in accordance with the
law of England and Wales.
27.2 The parties to this Agreement submit to the exclusive jurisdiction of the
English Courts in relation to any claim, dispute or matter arising out of
or relating to this Agreement.
27.3 Any delay by the Company in exercising any of its rights under this
Agreement will not constitute a waiver of such rights.
27.4 There are no collective agreements which directly affect the Executive's
terms and conditions of employment.
THIS AGREEMENT has been signed on behalf of the Company by a director and its
secretary and executed and delivered as a deed by the Executive on the date set
out at the beginning.
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EXECUTED AND DELIVERED as a )
Deed by THE COMPANY acting by: ) /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Director
/s/ ▇▇▇▇▇▇ ▇▇▇▇
-------------------------------
Secretary
EXECUTED AND DELIVERED as a )
Deed by THE EXECUTIVE in the )
presence of: ) /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇
Witness: ▇▇▇▇▇▇ ▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇
------------------------
Name:
-----------------------------
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇
▇▇▇▇ ▇▇▇
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