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EXHIBIT 10.34
DATED 1998
USC HOLDING UK LIMITED
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MR ▇▇▇▇▇ ▇▇▇▇
SERVICE AGREEMENT
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DATED
PARTIES
1 Company USC HOLDING UK LIMITED (company
no 3209772) whose registered office is
at ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
2 Executive ▇▇▇▇▇ ▇▇▇▇ of Kilreague, ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇
OPERATIVE PROVISIONS
1 DEFINITIONS AND INTERPRETATION
1.1 Unless the contrary intention appears, the following definitions apply:
associated company (a) a company whose equity share
capital (as defined by section 744
of the Companies Act 1985) is, as to
20% or more but less than 50%,
beneficially owned by one or more
Group Company; and
(b) a subsidiary of a company within
(a) above;
Bonus the Executive's bonus arrangements as set
out in clause 3.2;
Commencement Date 24 November 1997;
(a) trade secrets, customer lists,
Confidential Information trading details or other
information of a confidential
nature relating to a Group
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Company (including without limitation
details of activities, businesses
or finances of a Group Company);
(b) any other information designated
by any Group Company as
confidential; and
(c) any information in relation to which
any Group Company owes a duty of
confidentiality to any third party;
Group the Company, any holding company of the
Company and subsidiaries of the Company or
of any such holding company and an
associated company of any of them;
Group Company a member of the Group;
holding company and subsidiary the same meanings as in section 736
Companies ▇▇▇ ▇▇▇▇;
Intellectual Property includes letters patent, trade marks,
service marks, designs, utility models,
copyrights, design rights, applications for
registration of any of the foregoing and
the right to apply for them in any part of
the world, moral rights, inventions,
confidential information, know-how, and
rights of a similar nature arising or
subsisting anywhere in the world in
relation to all of the foregoing, whether
registered or
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unregistered;
President the President and Chief Executive Officer
of United States Can Company, from time to
time;
Recognised Investment Exchange the same meaning as in section 207 of the
Financial Services ▇▇▇ ▇▇▇▇;
Review Date each anniversary of the Commencement Date;
Salary the salary referred to at clause 3.1 as
varied from time to time: and
1.2 No period of employment with a previous employer shall count towards
the Executive's period of continuous employment which, for the
purposes of the Employment Protection Rights Act 1996 shall begin on
the Commencement Date.
1.3 The headings in this agreement are for convenience only and do not
affect its construction or interpretation.
1.4 References to an enactment are construed as extending to an amendment
or re-enactment and to any previous enactment which is consolidated
in the enactment (as amended or re-enacted) and to any regulation or
order made under any of them.
1.5 Words denoting the singular include the plural and vice versa; and
words denoting any gender include all genders.
2 JOB TITLE AND DUTIES
2.1 The Company shall employ the Executive and the Executive shall serve
as Senior Vice President International of the United States Can
Company and President of its European Operations. The Executive will
report directly to the President. The Executive will serve on the
Executive Committee of the United States Can Company.
2.2 The Executive shall during his employment under this agreement:
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2.2.1 perform such duties and exercise such powers as the President may
from time to time reasonably assign to him and such duties and powers
may relate or concern the business of any Group Company including
serving on the board of directors or other executive body or
committee or board of trustees of or relating to such Group Company
as may be required from time to time by the President;
2.2.2 well and faithfully serve the Group Companies and use his utmost
endeavours to promote their interests;
2.2.3 give to the President such information regarding the affairs of Group
Companies as it requires; and
2.2.4 at all times conform to the reasonable directions of the President.
2.3 The Executive shall during his employment under this agreement devote
himself exclusively to the performance of his duties during normal
working hours at his place of employment and at all other times
necessary for the proper performance of his duties, unless prevented
by ill health from doing so.
2.4 The Executive shall not directly or indirectly enter into, or be
concerned or interested in, any trade, business or occupation other
than the business of the Group except:
2.4.1 with the prior written consent of the President, but consent may be
given subject to any terms or conditions which the President
requires, a breach of which shall be deemed to be a breach of the
terms of this agreement; or
2.4.2 as a holder of not more than 3% of any class of shares, debentures or
other securities in a company which is listed or dealt in on a
Recognised Investment Exchange.
2.5 The Executive's place of employment shall be at Southall. The
Executive may be required, on not less than 3 months' notice, to be
permanently employed at any other place within the United Kingdom. In
the event that the Company exercises its right to require the
Executive to be permanently employed at another place, the relocation
arrangements under clause 3.7 will apply. The Executive may be
required to travel on the business of a Group Company.
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2.6 The Company may suspend the Executive for not more than 30 days on
full pay for the purpose of investigating the substance of any
disciplinary matter involving the Executive and holding a
disciplinary hearing.
3 REMUNERATION
3.1 SALARY
3.1.1 The Executive's Salary shall be (pound)220,000 per annum which shall
accrue from day to day and be payable in arrears by equal monthly
instalments not later than the last day of every month. The Salary
shall be inclusive of any director's fees payable to him under the
articles of association of a Group Company.
3.1.2 The Executive's Salary shall be reviewed by the Compensation
Committee of the Board of Directors United States Can Company on the
Review Date and may be increased at its discretion.
3.1.3 The Company may both during this agreement and on termination deduct
from the Salary any sum due from the Executive to the Company
including but not limited to any outstanding loans, advances, excess
holiday, over payments and any amount stated to be payable by the
Executive to the Company in any court or tribunal judgment or award.
3.2 BONUS
The Executive shall be eligible to participate in such annual
incentive scheme as shall be implemented in relation to employees of
the Executive's status from year to year under which he shall be
entitled to receive a bonus of up to 50% of Salary.
3.3 PENSION SCHEME
3.3.1 The Company shall procure that pension arrangements are put into
place as soon as reasonably practicable but in any event no later
than 5 April 1998, under which the Executive shall have an
entitlement which is no less beneficial to the Executive than the
entitlement he received from his previous membership of the Carnaud
Metal Box Senior Executive Pension Plan.
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3.3.2 The Company shall instruct professional advisers to provide advice to
the Executive concerning the implementation of these pension
arrangements and the Company shall be responsible for the
professional adviser's fees in relation to the provision of such
advice.
3.4 INSURANCE BENEFITS
The Executive shall be entitled to participate at the Company's
expense in the Company's life assurance scheme (to provide a payment
in the event of the Executive's death of four times Salary), the
United States Can Company's Long Term Disability Insurance Benefit
Plan (in relation to which the minimum service requirement shall be
waived) and for himself, his spouse and his children under 21 years
in the Company's private medical insurance scheme.
3.5 COMPANY CAR
3.5.1 The Company shall supply the Executive with a BMW 535 car (or
equivalent car) for his use in the performance of his duties. The
Company shall pay all running costs of the car including insurance
and maintenance including petrol consumed in private use.
3.5.2 The Executive shall take good care of the company car and ensure that
the provisions and conditions of any insurance policy relating to it
are observed and shall comply with all other requirements of the
Company's policy from time to time for the provision of cars to
employees.
3.6 MOBILE PHONE
The Company shall supply the Executive with a mobile phone and the
Company shall pay for costs incurred in the Executive's use of the
phone.
3.7 RELOCATION
3.7.1 For as long as the Executive continues to own the property at
Kilreague, Tivoli Road, Cheltenham, Glos and the Executive shall have
not have relocated to an address nearer to his place of work, the
Company will meet the cost of renting a
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furnished apartment that the Company shall reasonably deem to be
suitable for the Executive's purposes.
3.7.2 In the event that the Executive shall purchase a property nearer to
his place of work then the Company shall reimburse the Executive the
reasonable solicitor's fees, surveyor's fees, land registry fees,
stamp duty and removal costs involved in relocating to the new
property and a disturbance allowance of 16 2/3 per cent of the
Salary. Further, the Executive's entitlement to the cost of the
rented apartment under clause 3.7.1 shall cease.
3.8 EXPENSES
The Company shall by way of reimbursement pay or procure to be paid
to the Executive all reasonable expenses wholly, exclusively and
necessarily incurred by him in the performance of his duties under
this agreement on production of appropriate vouchers or receipts.
3.9 OTHER BENEFITS
Any benefits provided by the Company to the Executive or his family
which are not expressly referred to in this agreement shall be
regarded as ex-gratia and at the entire discretion of the Company and
shall not form part of the Executive's contract of employment.
4 TERM OF EMPLOYMENT
4.1 The Company shall employ the Executive and the Executive shall serve
the Company as from the Commencement Date until expiration of not
less than 24 months prior notice given by the Company to the
Executive or not less than 12 months prior notice given by the
Executive to the Company.
4.2 The Executive's employment under this agreement shall terminate
automatically on the last day of the month in which the Executive
shall attain the Company's retirement age from time to time. This is
currently 65 years.
4.3 If this agreement is terminated on notice the Company may require the
Executive to cease to perform his duties under this agreement and not
to attend at the
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Company's premises during the notice period or any part of the notice
period as the Company determines. During this period the Company
shall continue to pay the Executive the Salary and other benefits to
which he has an entitlement under this agreement and the Executive,
who shall remain in employment, shall continue to be bound by all
obligations owed to the Company under this agreement.
4.4 In the event that the Company shall wrongfully dismiss the Executive
the Company agrees to transfer to the Executive the ownership of the
Company car that the Executive shall at that time have the benefit of
pursuant to clause 3.5 of this agreement. The Executive agrees to
accept such transfer in full and final settlement of any claim that
he may have against the Company in relation to the loss of the use of
the car.
4.5 The Company agrees that in the event the Executive's employment under
this agreement is terminated by reason of redundancy the Company
shall make a payment to the Executive, in addition to any other
payment under this agreement, equal to two times the Executive's
entitlement to statutory redundancy pay (to include the Executive's
entitlement to statutory redundancy pay).
5 HOLIDAYS
The Executive shall (in addition to the usual public and bank
holidays) be entitled to 25 working days' holiday in each calendar
year to be taken at times convenient to the Company. During the first
and last calendar years of the Executive's employment the Executive
shall be entitled to a pro rata proportion of his annual holiday
entitlement. The Executive may not carry over accrued holiday
entitlement from one calendar year to the next without the written
consent of the President. On termination of this agreement (except
under clause 7 below) the Company shall make a payment in lieu of any
holiday entitlement not taken and may deduct from the final payment
of Salary for holiday taken in excess of the Executive's entitlement.
6 INCAPACITY
6.1 The Executive shall be entitled to statutory sick pay in relation to
periods of absence due to illness, accident or other incapacity. The
Executive shall, solely in
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the President's discretion, during any such period of absence,
continue to receive any remuneration in excess of statutory sick pay.
6.2 If the Executive is at any time prevented by illness, accident or
other incapacity from performing his duties for a period of 30
consecutive working days, the Company may appoint a temporary
replacement to undertake all or some of his duties during any further
period in which he is prevented from performing his duties.
6.3 For the purposes of this clause 6 a working day shall be Monday to
Friday inclusive.
6.4 If required by the President the Executive shall, at the expense of
the Company, undergo a medical examination by such medical
practitioner as the President nominates. The Executive shall
authorise the medical practitioner to disclose to and discuss with
the President the results of the examination.
7 SUMMARY TERMINATION OF EMPLOYMENT
7.1 The employment of the Executive may be terminated by the Company
without notice or payment in lieu of notice if the Executive:
7.1.1 commits an act of gross misconduct or of gross neglect or a material
or repeated breach of an obligation in this agreement, or is guilty
of conduct tending to bring himself or any Group Company into
disrepute; or
7.1.2 has an interim receiving order made against him, becomes bankrupt or
makes a composition or enters into any deed of arrangement with his
creditors; or
7.1.3 is convicted of an arrestable criminal offence (other than an offence
under road traffic legislation for which a fine or non-custodial
penalty is imposed); or
7.1.4 is convicted of an offence under the Part V of the Criminal Justice
▇▇▇ ▇▇▇▇ or under any other statutory enactment or regulations
relating to insider dealing; or
7.1.5 resigns as a director of any Group Company otherwise than at the
request of the President; or
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7.1.6 is disqualified from being a director of a company by reason of an
order made by a competent court.
7.2 The termination by the Company of the appointment shall be without
prejudice to any claim which the Company may have for damages arising
from breach of this agreement by the Executive.
8 EXECUTIVE'S OBLIGATIONS ON TERMINATION
Upon the termination of this agreement or in the event of the
Executive serving on the Company notice to terminate his employment
or in the event of the Company requesting the Executive to cease
performing or exercising any or all of his duties pursuant to clause
4.3:
8.1 the Executive shall at the request of the President immediately
resign all his directorships in the Group without claim for
compensation and in the event of his failure to do so any director or
the secretary of the Company may, in his name and on his behalf, sign
and deliver the resignations to the appropriate Group Company;
8.2 the Executive shall immediately deliver to the Company all records,
documents, accounts, letters and papers within his possession or
under his control relating to the affairs and business of any Group
Company and any other property belonging to a Group Company.
9 INVENTIONS
9.1 In accordance with the provisions of the Patents ▇▇▇ ▇▇▇▇, the
Registered Designs ▇▇▇ ▇▇▇▇ and the Copyright, Designs and Patents
▇▇▇ ▇▇▇▇, if in the course of his employment under this agreement the
Executive makes or discovers, or participates in the making or
discovery of, Intellectual Property relating to or capable of being
used in the business carried on by a Group Company, full details of
the Intellectual Property shall immediately be communicated by him to
the Company and 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 is
requisite to enable the Company to exploit the Intellectual Property
to the best advantage. If so requested, the Executive shall, at the
Company's
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expense but without receiving payment, execute all documents and do
all things necessary to vest the title to the invention, design or
discovery in the Company. The Executive irrevocably appoints the
Company to be his attorney and in his name and on his behalf to
execute any documents and generally to act and to use his name for
the purpose of giving to the Company (or its nominee) the full
benefit this clause. A certificate in writing signed by a director or
the secretary of the Company that an instrument or act falls within
the authority conferred by this clause shall be conclusive evidence
in favour of a third party that it is the case.
9.2 If the Executive makes or discovers or participates in the making or
discovery of any Property during his employment under this agreement
but which is not the property of the Company under clause 9.1, the
Company shall, subject only to the provisions of the Patents ▇▇▇
▇▇▇▇, have the right to acquire for itself or its nominee the
Executive's rights in the Intellectual Property within 3 months after
disclosure under clause 9.1 on fair and reasonable terms to be agreed
or settled by a single arbitrator.
9.3 The Executive waives all of his moral rights as defined in the
Copyright, Designs and Patents ▇▇▇ ▇▇▇▇ in relation to the
Intellectual Property which is the property of the Company by virtue
of clause 9.1.
9.4 Rights and obligations under this clause shall continue in force
after termination of this agreement in respect of Intellectual
Property made or discovered during the Executive's employment under
this agreement and shall be binding upon his representatives.
10 CONFIDENTIALITY
10.1 The Executive shall not (except in the proper course of his duties)
during the period of employment under this agreement or subsequently,
without the prior consent in writing of the President, divulge to any
person or otherwise make use of Confidential Information and shall,
during the period of this agreement, use his best endeavours to
prevent the publication or disclosure of any Confidential
Information.
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10.2 Confidential Information which is made or received by the Executive
during this agreement shall be the property of the Company and all
such property and copies thereof and any other property of the Group
shall be surrendered by the Executive to the Company at the
termination of this agreement (howsoever occasioned) or at the
request of the President at any time during the course of his
employment.
11 DISCIPLINE AND GRIEVANCES
11.1 The Company's discipline and grievance procedures as set out below do
not form part of the Executive's terms and conditions of employment
and afford him no legal rights.
11.2 The Executive shall promptly comply with all reasonable orders and
directions given to him by the President and with any orders or
regulations in force at his place of employment.
11.3 If the Executive is dissatisfied with any disciplinary decision
relating to him, or has any other grievance about his employment, he
should apply in writing to the President whose decision shall be
final.
12 NOTICES
All communications between the parties with respect to any of the
provisions of this agreement shall be sent to the addresses set out
in this agreement, or to such other addresses as may be notified by
the parties for the purpose of this clause, by pre-paid registered or
recorded delivery post or by facsimile transmission or other
electronic means of written communication with confirmation by letter
given by the close of business on the next following business day.
Any communication to the Company must be marked "For the attention of
the Company Secretary".
12.1 Communications which are sent or despatched as set out below shall be
deemed to have been received by the addressee as follows:
12.1.1 by post - 2 business days after despatch;
12.1.2 by facsimile transmission or other electronic means of written
communication - on the business day next following the day on which
the communication was sent.
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12.2 In proving service by post it shall be necessary only to prove that
the communication was contained in an envelope which was duly
addressed, stamped and posted by registered or recorded delivery
post. In proving service by facsimile transmission or other
electronic means of written communication, proof of service will be
accepted on proof of posting of the confirmatory letter.
12.3 For the purpose this clause a "business day" means a day on which the
clearing banks in the City of London are open for business and "close
of business" means 18.00 hours.
13 GENERAL
13.1 This agreement shall take effect as from the Commencement Date, from
which date all other agreements or arrangements, whether written or
oral, express or implied, between the Executive and any member of the
Group relating to the services or employment of the Executive shall
be deemed to have been cancelled.
13.2 The expiration or determination of this agreement shall not affect
those terms which are expressed to operate or have effect after its
termination and shall be without prejudice to any right of action
already accrued to either party in respect of a breach of this
agreement by the other party.
14 LAWS
The construction, validity and performance of this agreement shall be
governed by the laws of England.
Delivered as deed on the date of this agreement
EXECUTED by USC HOLDING UK LIMITED ) /S/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
as a deed )
[SIG]
Director
Director/Secretary
[SIG]
SIGNED by ▇▇▇▇▇ ▇▇▇▇ ) /S/ ▇▇▇▇▇ ▇▇▇▇
as a deed in the presence of: )
/s/ ▇▇▇▇▇ ▇▇▇▇
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