EXHIBIT 10h1
THIS AGREEMENT is made the 11th day of March 1997
BETWEEN:
(1) XXXXXXXX LIMITED a company in England under number 1501573 whose registered
office is at Members Hill, Xxxxxxxxxx Xxxx, Xxxxxxxxx, Xxxxxx XX00 0XX
("the Company") and
(2) XXXXX XXXXXXX XXXXXX of Xxx Xxxxxx Xxx Xxxxxx Xxxx Xxxxx Xxxxxxxxx XX000
0XX ("the Executive")
WHEREBY IT IS AGREED AS FOLLOWS:
INTERPRETATION
1. (A) DEFINITIONS
UNLESS the context otherwise requires, in this Agreement and in the Schedule
hereto the following words and phrases shall have the meanings given below:
(1) "subsidiary" or "subsidiary company" and "holding company" shall have the
meanings ascribed to them Part XXVI of the Companies Xxx 0000;
(2) "Group" means the Company, the company incorporated in England under number
3299793 currently named Xxxxxxxx Group Limited ("Xxxxxxxx Group") and all
the subsidiaries of the Company and Xxxxxxxx Group and "Group Company"
shall be construed accordingly;
(3) "the Board" means the Board of Directors of the Company;
(4) "the Business" means (taken together) the business of the Company and the
business of any other Group Company with which the Executive is required by
the Board under Clause 3 of this Agreement to be concerned;
(5) "Contractual Retirement Date" means the date specified in paragraph 8 of
the Schedule hereto;
(6) "the Effective Date" means the date specified in Paragraph 2 of the
Schedule hereto;
(7) "month" means a calendar month; and
(8) "Restricted Client" means any person who on the date of termination of the
Executive's employment or at any time during the period of eighteen months
immediately prior to the date of termination was a client of the Company
and with whom during the same period the Executive shall have had business
dealings.
(9) "Demerger" means the demerger of the Company and its subsidiaries from
American Brands, Inc. (ABI") which is to be effected by, inter alia, the
transfer of all the issued shares in the Company to a new company to be
owned by ABI and to be known as Xxxxxxxx Group Plc ("Xxxxxxxx Group"), the
distribution by ABI of all the issued shares in Xxxxxxxx Group to the
shareholders of ABI in the same proportions as those shareholders hold
shares in ABI and the listing of all the issued shares in Xxxxxxxx Group on
the London Stock Exchange and in the form of American depository shares on
the New York Stock Exchange.
Other words and phrases the definition of which is contained or referred to in
Part XXVI of the Companies Xxx 0000 shall be construed as having the meanings
thereby attributed to them.
(B) CONSTRUCTION OF CERTAIN REFERENCES
Unless the context otherwise requires any references in this Agreement to:
(1) a "person" shall include any individual company corporation firm
partnership joint venture association organisation or trust (in each case
whether or not having separate legal personality) and references to any of
the same shall include a reference to the others;
(2) "writing" or "written" shall include any means of visible reproduction;
(3) words denoting the singular shall include the plural and vice versa;
(4) sub-clauses are references to sub-clauses of the Clause in which the
reference appears;
(5) statutory provisions shall be construed as references to those provisions
as respectively amended or re-enacted or as their application is modified
by other
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provisions (whether before or after the date hereof) from time to time and
shall include any provisions of which they are re-enactments (whether with
or without modification); and
(6) the masculine gender shall be deemed to include the feminine gender.
(C) CLAUSE HEADINGS
Clause headings are inserted for convenience only and shall not affect the
construction of this Agreement.
(D) REASONABLE OF RESTRICTIONS
The restrictions contained in Clause 13 hereof are considered reasonable by the
parties hereto. In particular, the Executive agrees that the restrictions are
reasonable and necessary for the protection of the business of the Company and
any Group Company as appropriate.
APPOINTMENT
-----------
2. THE Company shall employ the Executive and the Executive agrees to serve the
Company in the capacity specified in paragraph 1 of the Schedule hereto as at
and with effect from the Effective Date and continuing thereafter (subject to
termination as hereinafter provided) unless and until terminated by the Company
giving to the Executive not less than the period of prior notice in writing
specified in paragraph 3(a) of the Schedule hereto or the Executive giving to
the Company not less than the period of prior notice in writing specified in
paragraph 3(b) of the Schedule hereto but so that the employment of the
Executive hereunder shall terminate in any event on the Contractual Retirement
Date. The Company will be entitled from time to time to appoint any other
person or persons to act jointly with the Executive in the performance of his
duties.
DUTIES, POWERS AND MOBILITY
---------------------------
3. (A) THE Executive shall exercise such powers perform such duties (if any)
and comply with such directions in relation to the business of the Company and
any other Group Company or Group Companies consistent with his employment
hereunder as the Board or any person authorized by the Board for the purpose may
from time to time confer upon or assign or give to him.
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(B) The Executive shall during the continuance of his employment
hereunder (unless prevented by ill health or accident) devote so much of his
time and attention and abilities to the Business as the Board may reasonably
require for the proper performance of his duties hereunder and shall use his
best endeavors to promote and protect the general interests and welfare of the
Company.
(C) The Executive shall at all times promptly give to the Board (in
writing if so requested) all such information explanations and assistance as it
may require in connection with the Business and his employment hereunder.
(D) The Executive may be required to travel on the business of the
Company or any other Group Company both inside and outside the United Kingdom in
the proper performance of his duties hereunder.
(E) The Executive shall work in such place or places (whether within
or outside the United Kingdom) as the Board may reasonably require for the
proper performance of his duties hereunder.
REMUNERATION
4. (A) SUBJECT to Clause 8(B) below the Company shall pay to the Executive
during the continuance of his employment hereunder as remuneration for his
services a salary at the annual rate specified in paragraph 4 of the Schedule
hereto payable in arrear by equal installments on or before the last day of each
month which said salary shall be deemed to accrue from day to day. Such salary
shall include any sum receivable by the Executive as Director's fees from the
Company or any other Group Company.
(B) The remuneration payable to the Executive by the Company pursuant
to sub-clause (A) shall be subject to review in accordance with the Company's
practice from time to time. The Company shall be under no obligation to
increase remuneration on such review but shall not in any event reduce
remuneration on review.
(C) The Executive may be entitled to a bonus in addition to salary.
Entitlement to bonus will be at the absolute discretion of the Company.
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EXPENSES
5. THE Company shall pay or refund or procure to be paid or refunded to the
Executive all reasonable traveling entertainment and other similar out of pocket
expenses necessarily and wholly incurred by him in the performance of his duties
hereunder but the Company shall be entitled as a condition of reimbursement to
such evidence from the Executive as to such expenses as the Board may reasonably
require (including without limitation proper accounts with vouchers).
COMPANY CAR
6. (A) THE Company shall make available to the Executive a motor car ("the
Car") for his use of such type as the Board may in its absolute discretion
decide is suitable for him.
(B) The Company shall pay the costs of insuring, testing and taxing
the Car and shall reimburse the Executive in respect of all running expenses in
connection with the use of the Car (including petrol, lubrication, maintenance
and repairs of the Car) but excluding any petrol for private mileage outside the
United Kingdom.
(C) The Car may from time to time be replaced with a car of similar
type.
(D) The Executive shall be permitted to use the Car for his own
personal purposes including use on holiday outside the United Kingdom and
traveling to and from his normal place of business.
(E) The Executive shall ensure that at all times when the Car is
driven on a public highway it is in the state and condition required by law and
that if so required a current test certificate is in force in respect of it.
(F) The Executive shall at all times conform to all regulations which
may from time to time be made or imposed by the Company or any other Group
Company as appropriate in regard to motor cars provided for the use of
executives.
(G) It shall be a condition of the provision of the Car to the
Executive that in the event of the termination of the employment of the
Executive for whatever
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reason and howsoever caused, the Executive shall immediately upon demand deliver
up the Car to the Company.
HOLIDAYS
7. (A) IN addition to statutory and bank holidays the Executive shall be
entitled to paid holiday in each calendar year of the period specified in
paragraph 5 of the Schedule hereto at such time or times as the Business may
permit.
(B) Holidays may not be carried forward from one year to the next and
the Executive will not be entitled to any payment (whether during the
continuance or on termination of this Agreement) in lieu of holidays not taken.
SICKNESS AND INCAPACITY
8. (A) IF the Executive is absent from work as a result of sickness or injury
he will
(1) if the period of absence is less than eight consecutive calendar
days, submit to the Company on his return a certificate of sickness
completed by himself;
(2) if it is eight consecutive calendar days or more submit to the
Company without delay a medical certificate signed by a practicing medical
practitioner in respect of each week of absence after the first.
(B) Subject to compliance with sub-clause (A) above the Executive
will be entitled to payment of his salary at the full rate (less any social
security or other benefits payable to him) during the first twelve months of
absence from work as a result of sickness or injury. Thereafter the Executive
shall be entitled to such salary and other benefits (if any) as the Company
shall in its absolute discretion decide.
(C) The Company will pay Statutory Sick Pay, where appropriate, in
accordance with the legislation in force at the time of absence and any payment
of salary in accordance with this Clause will go towards discharging its
liability to pay Statutory Sick Pay.
(D) If the Executive is absent from work due to the act or default of
a third party, and claim for damages, if made, shall include a claim for "loss
of earnings". Any
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sum recovered under this head shall subsequently be refunded to the Company.
(E) The Executive shall submit himself to a medical examination at
the request and reasonable expense of the Board at any time during the
continuance of his employment hereunder whether or not the Executive is absent
by reason of sickness injury or other incapacity.
PENSION
9. (A) In this clause "Pension Scheme" means the Xxxxxxxx 'M' Pension Scheme
and includes, unless the context otherwise requires, any replacement scheme as
provided below.
(B) The Executive shall, while in employment hereunder, be entitled
to be and to remain a member of the Pension Scheme on a non-contributory basis,
subject to the terms and conditions of the Pension Scheme from time to time in
force, including the powers of amendment and discontinuance.
(C) The Company undertakes to and with the Executive as follows:
(1) no material adverse amendment will be made to the benefits
payable or prospectively or contingently payable under the
Pension Scheme to or in respect of the Executive apart from any
such amendment which is made in order to comply with any
applicable law, regulation or requirement or is made with the
prior written consent of the Executive;
(2) if while the Executive is in employment hereunder the Pension
Scheme is terminated or the Executive is unable to continue in
pensionable service under the Pension Scheme:
(a) the Executive will be provided with the benefit of a
replacement retirement benefits scheme (the "replacement
scheme") which is approved or is treated by the Board of
Inland Revenue as approved under Chapter I, Part XIV, Income
and Corporation Taxes Xxx 0000;
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(b) subject to (c) below, the benefits payable or prospectively
or contingently payable under the replacement scheme to or
in respect of the Executive will be no less favorable
overall than those so payable under the Pension Scheme
immediately prior to the Pension Scheme being terminated or,
as the case may be, the Executive ceasing to be in
pensionable service under it;
(c) where a transfer value is not made from the Pension Scheme
to the replacement scheme in lieu of all the benefits
otherwise payable under the Pension Scheme to or in respect
of the Executive or where such a transfer value has been
paid but a subsequent transfer value is before the Executive
ceases to employed hereunder paid from the replacement
scheme in respect of all or any of the benefits otherwise
payable under the replacement scheme in respect of the
Executive's membership of the Pension Scheme a reasonable
deduction, as determined by the Company on actuarial advice,
shall be made from the benefits otherwise payable pursuant
to (b) above for any benefits which are not payable under
the replacement scheme but which are payable or, as the case
may be, have been paid in respect of the Executive's
membership of the Pension Scheme.
(D) The Company undertakes to procure if the Executive on ceasing to
be employed by the Company becomes employed by another person (the "New
Employer") pursuant to the Transfer of Undertakings (Protection of Employment)
Regulations 1981 the Executive is employed by the New Employer on the terms with
regard to relevant benefits which are identical to those contained in this
clause and that in relation to the provision of relevant benefits employment
with the Company is treated as employment with the New Employer (where "relevant
benefits" has the same meaning as in section 612, Income and Corporation Taxes
Act 1988).
(E) A contracting-out certificate is in force in relation to the
Pension Scheme for the purposes of the Xxxxxxx Xxxxxx Xxx 0000.
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PRIVATE HEALTH INSURANCE AND OTHER INSURANCE
10. THE Company shall pay all premiums and make all necessary payments to
provide the Executive with medical insurance under the provisions of the
Company's membership of such medical insurance scheme or schemes as the Board
may from time to time determine and of which the Executive is or may become
during the continuance of his employment hereunder a member.
EXCLUSIVE SERVICE
11. DURING the continuance of his employment hereunder the Executive shall not
(save with the prior consent of the Board communicated in writing by the
Secretary of the Company to the Executive) either as principal servant or agent
carry on or be engaged concerned or interested directly or indirectly whether
alone or on his behalf or on behalf of or in association or conjunction with any
other person and whether as an employee or in any capacity in any trade business
or occupation whatsoever other than that of the Company or of any other Group
Company (otherwise than as a holder for investment purposes only of any units of
an authorized unit trust and as a holder directly or through nominees of not
more than 5 per cent of the shares or debentures in any company or companies).
INVENTIONS AND IMPROVEMENTS
12. (A) IN this Clause 12, the term "Intellectual Property" means inventions
(whether patentable or not, and whether or not patent protection has been
applied for or granted),improvements, developments, discoveries, proprietary
information, trade marks, trade names, logos, art work, slogans, know-how,
processes, designs (whether or not registrable and whether or not design rights
subsist in them), utility models, works in which copyright may subsist
(including computer software and preparatory and design materials therefor), and
all works protected by rights or forms of protection of a similar nature or
having equivalent effect anywhere in the world.
(B) Subject to the provisions of the Patents Xxx 0000, the Registered
Designs Xxx 0000 and the Copyright Designs and Patents Xxx 0000, if at any time
in the course of or in connection with his employment under this Agreement the
Executive makes or discovers or participates in the making or discovery of any
Intellectual Property directly or indirectly relating to or capable of being
used in the
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business carried on by the Company or by any Group Company, full details of the
Intellectual Property shall immediately be disclosed in writing by him to the
Company and the Intellectual Property shall be the absolute property of the
Company. At the request and expense of the Company, the Executive shall give and
supply all such information, data, drawings and assistance as may be necessary
or in the opinion of the Company desirable to enable the Company to exploit the
Intellectual Property to the best advantage, and shall execute all documents and
do all things which may be necessary or in the opinion of the Company desirable
for obtaining patent or other protection for the Intellectual Property in such
parts of the world as may be specified by the Company and for vesting the same
in the Company or as it may direct.
PROTECTION OF INTERESTS OF COMPANY: CONFIDENTIALITY, NON-ENTICEMENT, NON-
SOLICITATION AND NON-COMPETITION
13. (A) THE Executive shall not at any time either before or after the
termination of his employment with the Company use disclose or communicate to
any person whatsoever any confidential information relating to the business of
the Company or any Group Company or any customers suppliers or agents thereof or
their affairs or any trade secrets of which he may have become possessed during
the continuance of his employment with the Company or supply the names or
addresses of any customers or agents of the Company or any Group Company to any
person except in the proper course of his duties hereunder or as authorized in
writing by the Board or as ordered by a Court of competent jurisdiction.
(B) The Executive shall not at any time during the continuance of his
employment with the Company make otherwise than for the benefit of the Company
or any Group Company any notes or memoranda relating to any matter within the
scope of the Business or concerning any of the dealings or affairs of any Group
Company.
(C) The Executive shall not utter any statement (whether written or
oral) to any representative of television radio film newspaper or other similar
media and shall not write any article for the press or otherwise for publication
on any matter connected with or relating to the business of any Group Company
except in the proper course of his duties or with the approval of the Board.
(D) The Executive hereby covenants that he shall not without the
consent in writing of the Board during the
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continuance of his employment by the Company or during the period specified in
paragraph 9 of the Schedule hereto after the date of termination of his
employment except in the event of an unlawful termination by the Company either
on his own account or in conjunction with or on behalf of any other person
solicit or entice away or endeavor to solicit or to entice away from the Company
or any Group Company any individual:
(a) who is a senior employee or director of the Company or any Group
Company; or
(b) who is contracted to render services to any such company
and in either case with whom the Executive has business dealings during his
employment with the Company whether or not any such person would commit a breach
of contract by reason of his leaving service.
(E) The Executive hereby covenants that he shall not during the
period specified in paragraph 10 of the Schedule hereto immediately following
the termination of his employment except in the event of an unlawful termination
by the Company on his own behalf or on behalf of or in conjunction with any
other person solicit interfere with or entice away or attempt to solicit
interfere with or entice away any person who is a Restricted Client provided
always that nothing contained in this sub-clause shall be deemed to prohibit the
seeking or doing of business not in direct or indirect competition with the
Business.
(F) The Executive hereby covenants that he shall not during the
period specified in paragraph 10 of the Schedule hereto immediately following
the termination of his employment except in the event of an unlawful termination
by the Company on his own behalf or on behalf of in conjunction with any other
person have business dealings directly or indirectly with any person who is a
Restricted Client provided always that nothing contained in this sub-clause
shall be deemed to prohibit the seeking or doing of business not in direct or
indirect competition with the Business.
(G) The Executive hereby covenants that he shall not, without the
prior consent in writing of the Company, during the 12-month period immediately
following the termination of his employment except in the event of an unlawful
termination by the Company either alone or jointly, be engaged, concerned or
interested either directly or
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indirectly in any capacity in the business of the manufacture or sale of tobacco
products.
(H) The Executive hereby covenants with the Company in terms
identical to those contained in sub-clauses (D), (E), (F) and (G) save that the
reference to the termination of the Executive's employment shall refer to the
termination of the Executive's employment for any reason whatsoever whether
lawful or unlawful.
SCOPE OF RESTRICTIONS AND APPLICATION
14. THE Executive agrees that in the event of his receiving from any person an
offer of employment either during the continuance of this Agreement or during
the continuance in force of all or any of the restrictions set out in Clause 13
of this Agreement he shall forthwith inform the Company Secretary.
TERMINATION UPON AMALGAMATION OR RECONSTRUCTION
15. (A) THE provisions of subclause 15(B) shall not apply to a termination
employment occurring within two years after a Change of Control (as defined in
sub-clause 17(F)).
(B) If the employment of the Executive with the Company shall be
terminated either by reason of the liquidation of the Company for the purpose of
reconstruction or amalgamation or as part of any arrangement for the
amalgamation or reconstruction of the Company not involving insolvency and the
Executive shall be offered employment with any concern or undertaking resulting
from such amalgamation or reconstruction on terms and conditions which taken as
a whole are not less favorable than the terms of this Agreement then the
Executive shall have no claim against the Company in respect of such termination
of his employment with the Company.
DIRECTORSHIPS
16. (A) THE Executive shall accept appointment as a Director of any such Group
Company as the Board may require in connection with his appointment hereunder
and as a Director of any other company as the Board may reasonably so require
and he shall resign without claim for compensation from office as a Director of
any such company (other than the Company) at any time on request by the Company
which resignation shall not affect continuance in any way of this Agreement.
The Executive shall forthwith account to the
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Company for any director's fees or other emoluments remuneration or payments
either receivable or received by him by virtue of his holding office as such
director as aforesaid (or waive any right to the same if so required by the
Company).
(B) Upon the termination of the Executive's employment with the
Company for whatsoever reason the Executive shall unless requested by the Board
not to do so resign promptly from
(1) office as a director of the Company or of any Group Company or of any other
company as is referred to in sub-clause (A) of which he is a director and
(2) from all offices held by him in any or all of such companies and
(3) all trusteeships held by him of any pension schemes or other trusts
established by the Company or any other Group Company or any other company
with which the Executive has had dealings as a consequence of his
employment by the Company.
(C) Should the Executive fail to resign from office as a director or
from any other office or trusteeship as if referred to in sub-clauses (A) or (B)
either during his employment when requested by the Company so to do or on
termination thereof the Company is hereby irrevocably authorized to appoint some
person in his name and on his behalf to execute any documents and to do all
things requisite to give effect thereto.
(D) Save with the prior agreement in writing of the Board the
Executive shall not during the continuance of his employment hereunder resign
office as a director of the Company or any Group Company or any other company as
is referred to in sub-clause (A) or do anything that would cause him to be
disqualified from continuing to hold office as a director.
TERMINATION
17. (A) THE Executive's employment with the Company may be terminated
forthwith by the Company without prior notice if the Executive shall at any
time:
(1) commit any serious breach or repeated or continual breach of any of his
obligations hereunder; or
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(2) be guilty of any serious misconduct or serious neglect in the discharge of
his duties hereunder; or
(3) have a bankruptcy order made against him or if he shall make any
arrangement or composition with his creditors or have an interim order made
against him pursuant to Section 252 of the Insolvency Xxx 0000; or
(4) tend by his actions or omissions to bring the name or reputation of the
Company or any Group Company into serious disrepute or prejudice the
interests of the business of the Company or any other Group Company
(bearing in mind the nature of the duties he is engaged in hereunder and
the capacity in which he is employed); or
(5) be convicted of an offense under any present or future statutory enactment
or regulation relating to insider dealing; or
(6) be or become prohibited by law from being a director.
(B) In the event of termination pursuant to sub-clause (A) the
Company shall not be obliged to make any further payment to the Executive beyond
the amount of any remuneration actually accrued due to the date of such
termination and the Company shall be entitled to deduct from such remuneration
any sums owing to it or to any other Group Company by the Executive.
(C) In the event of the termination of the employment of the
Executive hereunder for whatever reason and whether by notice or in any other
manner whatsoever the Executive agrees that he will not at any time after such
termination represent himself as still having any connection with the Company or
any Group Company.
(D) In the event of the termination of the employment of the
Executive hereunder by notice given pursuant to Clause 2 of this Agreement by
either party, the Executive agrees that the Company may in its absolute
discretion require the Executive not to render all or any of his duties
hereunder or to exclude him from any premises of the Company (without providing
any reason therefor) during the relevant notice period or (if the date of
termination is disputed) at any time after the disputed date of termination and
that such action (if taken) on the part of the Company shall not constitute a
breach of this Agreement of any kind whatsoever in respect of which the
Executive has any claim
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against the Company provided always that throughout the period of any such
action the Executive's salary and contractual benefits shall not cease to be
payable by reason thereof.
(E) At any time within two years after the Executive becoming aware
of a Change of Control (as defined in sub-clause (F) below) of the Company and
except as otherwise provided in sub-clauses (G), (H), (I) and (J) below, the
Executive will, either on being dismissed by the Company (otherwise than under
sub-clause (A) above) or upon terminating his employment with or without notice
following any of the events set out in sub-clause (K) below, be entitled to be
paid by the Company a sum equivalent to two years' salary at the rate in effect
immediately prior to the date of the termination plus a sum equal to twice the
last bonus received by the Executive prior to the Change of Control plus twice
the tax value of the benefits in kind received by the Executive in respect of
the twelve month period preceding the Change of Control. Payment will be made
within 21 days of termination of employment and will be accepted by the
Executive in full and final settlement of all or any claims the Executive has or
may have arising out of the termination of his employment including such claims
(if any) that the Executive has or may have arising from the failure (if any) by
the Company to give to the Executive the period of notice specified in paragraph
3(a) of the Schedule hereto. For the avoidance of any doubt it is agreed that
no discount or deduction shall be made from any payment under this clause 17(E)
to take account of any mitigation on the part of the Executive of the loss
arising from the termination of his employment or accelerated receipt of the
payment.
(F) For the purposes of this clause "Change of Control" shall subject
to the provisions of sub-clause (H) below be regarded as occurring if and only
if
(i) any person, firm or company who or which does not at 1 January
1997 possess Control of the Company acquires Control of the
Company or
(ii) any person firm or company who or which does not immediately
following Demerger possess Control of the Company acquires
Control of the Company
except that prior to Demerger a Change of Control shall be regarded as occurring
if and only if the Company ceases to
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be beneficially owned (directly or indirectly) to the extent of at least 50% by
American Brands, Inc ("ABI") or if 20% or more of the common stock of ABI shall
come within the beneficial ownership of one person or one concerted group of
persons.
For these purposes:
(1) "Person firm or company" shall include any person acting in concert (within
the definition of that expression in the City Code on Takeovers or Mergers
as at 1 January 1997) with that person firm or company; and
(2) "Control" bears the meaning as at 1 January 1997 given to that expression
in section 840 of Income and Corporation Taxes Xxx 0000.
(G) In the event that the employment of the Executive would be
terminated upon the expiry of a notice of termination of this Agreement which
has been served by either party prior to the date of the Change of Control then
the provisions of sub-clause (E) above shall not apply.
(H) Demerger shall not constitute a Change of Control for the
purposes of sub-clause (E) above.
(I) In the event that the employment of the Executive would be
terminated automatically on the Contractual Retirement Date within two years of
the Change of Control the payment under sub-clause (E) shall be reduced pro rata
by reference to the proportion of the two year period which falls after the
Contractual Retirement Date.
(J) In the event that the Executive terminates his employment by
giving notice following any of the events set out in sub-clause (K) that part of
the payment under sub-clause (E) which is related to salary and the tax value of
benefits in kind shall be reduced pro rata by reference to the period of notice
worked by the Executive.
(K) The events referred to in sub-clause (E) above are as follows:
(1) without the Executive's express written consent any material reduction in
the aggregate duties responsibilities and authority assigned to him
pursuant to Clause 3(A) of this Agreement or the assignment to him of any
duties responsibilities or authority
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inconsistent with the duties responsibilities and authority previously
assigned to him pursuant to Clause 3(A) of this Agreement or a change in
his title or position below that in effect on the date of the Change of
Control;
(2) a reduction by the Company in the Executive's salary in effect on the date
hereof as increased subsequently pursuant to Clause 4(B);
(3) the failure of the Company substantially to maintain and to continue the
Executive's participation in the Company's benefit plans as in effect on
the date hereof as increased by improvements made subsequent thereto or the
taking of any action which would materially reduce the Executive's benefits
under any of such plans or deprive the Executive of any material fringe
benefit enjoyed by him on the date hereof or subsequently. For the
purposes hereof such benefit plans shall include but not be limited to the
Company's pension plans. The substituting for any existing benefit plan of
a similar plan providing no less favorable benefits shall be deemed not to
be a failure by the Company to maintain or continue the Executive's
participation in any such benefit plan and any reference in this sub-clause
to any benefit plan shall be deemed to include a reference to any such
substituted benefit plan;
(4) either of the next two annual bonuses following a Change of Control is less
than the bonus (if any) paid in respect of the Last Year provided that if
the consolidated profits before tax of the Group for the Last Year are
greater than the consolidated profits before tax of the Group for the
Current Year then for the purposes of this Clause 17(K)(4) the bonus in
respect of the Last Year shall be deemed to be reduced pro rata by
reference to the proportion which the consolidated profits before tax of
the Group for the Current Year bear to the consolidate profits before tax
of the Group for the Last Year. In this Clause 17(K)(4)
"the Current Year" means either of the two financial years of the
Group immediately following the Last Year.
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"the Last Year" means:
(i) if a Change of Control takes place between the ending of a
financial year of the Group and the payment of a bonus in respect
of that financial year or, as the case may be, a declaration that
there will be no bonus in respect of that financial year, the
financial year of the Group next but one immediately preceding
the financial year of the Group during which the Change of
Control takes place; and in all other circumstances
(ii) the financial year of the Group immediately preceding the
financial year of the Group during which the Change of Control
takes place
save that
(i) if the Last Year is the financial year ended 31 December 1996 or
31 December 1997 then the consolidated profits before tax of the
Company and its subsidiaries shall be substituted for those of
the Group for the purposes of this Clause 17(K)(4)
(ii) if the Last Year is the financial year ended 31 December 1996
then the bonus paid in respect of the Last Year shall be deemed
to be (Pounds)160,500
(iii) if following a Change of Control there is a significant change
in the nature or scale of the business of the Group the profits
before tax of the Current Year will be deemed to be equal to the
profits before tax of the Last Year
For the avoidance of doubt if no bonus is paid in respect of the Last Year
nothing in this Clause 17(K)(4) shall entitle the Executive to terminate
his employment or to receive a payment pursuant to Clause 17(E).
(5) notwithstanding Clause 3(E) the relocation of the offices at which the
Executive was required to work at the time of the Change of Control arising
to a location more than 35 miles away except for required travel on
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the Company's business to an extent substantially consistent with his
business travel obligations on the date hereof;
(6) the failure of the Company to provide the Executive during a calendar year
with a number of paid holidays at least equal to the number of paid
holidays to which he was entitled at the date hereof pursuant to Clause 7
of this Agreement as increased subsequent thereto;
(7) circumstances arise which entitle the Executive to terminate this Agreement
without notice because of the Company's conduct (ie, the circumstances of
constructive dismissal).
STATUTORY PARTICULARS
18. THE following particulars are set forth in compliance with the requirements
of the Employment Rights Xxx 0000:
(A) The employment of the Executive by the Company and his continuous period of
employment with the Company began on the respective dates specified in
paragraphs 13 and 7 of the Schedule hereto.
(B) Save as contained herein or otherwise notified to the Executive in writing
there are no terms or conditions of employment relating to hours of work or
to normal working hours or to holidays or to holiday pay or to incapacity
for work due to sickness or injury or to sick pay or to pensions or pension
schemes or to disciplinary rules and procedures or to collective
agreements.
(C) If the Executive is dissatisfied with any disciplinary decision relating to
him or if he has any grievance arising from his employment hereunder he may
refer any such matter to the Board which will deal with the matter by
discussion and by a decision of those present at the relevant Board Meeting
at which the matter is discussed.
(D) The Executive's hours of work shall be such as may be requisite for the
proper discharge of his duties hereunder.
(E) The Executive hereby authorizes the Company to deduct and to retain from
any remuneration accrued due to him under the terms of this Agreement
(whether or not
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actually paid during the continuance of his employment hereunder) those
sums set out in paragraph 12 of the Schedule hereto.
RETURN OF PROPERTY ON TERMINATION
19 (A) UPON the termination of his employment with the Company for whatsoever
cause the Executive shall forthwith deliver up to the Company or its authorized
representative any property of the Company or any other Group Company which may
be in his possession custody or under his control including without limitation
the Car and the keys relating thereto minutes memoranda correspondence notes
records reports sketches plans or other documents and any copies thereof,
whether or not the same were originally supplied to him by the Company or any
other Group Company.
(B) If so requested the Executive shall provide to the Board a signed
statement confirming that he has fully complied with sub-clause (A).
NOTICES
20. ANY notice to be given hereunder shall be given in writing and may be given
either personally or may be sent addressed in the case of the Company to its
registered office for the time being and in the case of the Executive to him at
his last known place of residence and any notice given by post shall be deemed
to have been served on the day which is three days following that on which it
was posted.
CONSTRUCTION
21. (A) THE provisions of the Schedule hereto and any special terms endorsed
in writing by or on behalf of the parties hereto shall be read and construed as
part of this Agreement and shall be enforceable accordingly.
(B) The benefit of each agreement and obligation of the Executive
under Clause 13 of this Agreement may be assigned to successors for the time
being carrying on the Business and enforced by such assignees for the time being
carrying on the Business and such agreements and obligations shall operate and
remain binding notwithstanding the termination of this Agreement.
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LAW OF AGREEMENT
22. THIS Agreement shall be governed by and interpreted according to the Law of
England.
PRIOR AGREEMENTS
----------------
23. THIS Agreement shall be in substitution for any subsisting service
agreement or contract of employment (oral or otherwise) made between the Company
and the Executive or between any other Group Company and the Executive which
shall be deemed to have been terminated by mutual consent with effect from the
Effective Date.
IN WITNESS whereof this Agreement has been entered into the day and
year first above written.
{ The common seal of XXXXXXXX
{ LIMITED was hereunto
[SEAL] { affixed in the presence of:
[Signature illegible] Director
X.X. Xxxxxxx Secretary
{ SIGNED and DELIVERED
Xxxxx X. Xxxxxx { by the EXECUTIVE as a deed
{ in the presence of:
C.T. Xxxxxxx
Solicitor
Members Hill
Weybridge
21
THE SCHEDULE above referred to
1. Capacity of the Executive: Chairman and Chief
(Clause 2) Executive of Xxxxxxxx
Limited
2. The Effective Date: 1st January 1997
(Clause 2)
3. Minimum Notice Period: (a) Two Years
(Clause 2) (b) One year
4. Remuneration: (Pounds)485,000
(Clause 4)
5. Holidays: 25 Working days
(Clause 7)
6. Pension Schemes: The Xxxxxxxx "M" Pension
(Clause 9) Scheme
7. The continuous period of
employment of the
Executive with the
Company for statutory 06 October 1969
purposes began on:
(Clause 18(A))
8. Contractual Retirement Date: 30 June 2001
(Clause 2)
9. Period of Non-Enticement: Twelve months
(Sub-clause 13(D))
10. Period of Non-solicitation: Twelve months
(Sub-clause 13(E))
11. Period of dealing: Twelve months
(Sub-clause 13(F))
12. Deduction authorized pursuant to the Employment
Rights Xxx 0000:
any debt owed by the Executive to the Company;
any pension or other similar contribution owed by
the Executive as a consequence of the Executive's
membership of the pension schemes referred to in
paragraph 6 above;
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any deduction from remuneration the Executive's
consent to which has previously been signified to
the Company in writing and the deduction of any
other sum or sums which may from time to time be
required or authorized pursuant to subsection
13(1)(a) of the Employment Rights Xxx 0000.
(Sub-Clause 18(E))
13. The employment of the Executive by the Company began on:
01 January 1981. (Clause 18(A))
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