Exhibit 10.4
THIS AGREEMENT is made the 19th day of January, 1996.
BETWEEN:-
1) STIRLING XXXXX INSURANCE BROKERS LIMITED registered in England No. 1881645
whose registered office is at 00 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX0X 0XX ("the
Company") and
2) XXXXXX XXXXXXX XXXXX of 00 Xxxxxxx Xxxxxxx, Xxxxxx, X0 0XX ("the
Executive").
WHEREBY IT IS AGREED as follows:-
1) DEFINITIONS
In this Agreement:
"Associated Company" means a company which is from time to time a
subsidiary or a holding company (as those
expressions are defined by Section 736 of the
Companies Act 1985) of the Company or a subsidiary
(other than the Company) of a holding company of
the Company;
"the Board" means the Board of Directors from time to time of
the Company;
"the Parent Company" means Stirling Xxxxx Holdings Limited.
2) TERM OF APPOINTMENT
(A) The Executive shall serve the Company as its Financial Director
subject to clauses 13 and 14 hereof for the period of three years from
1st January 1996 ("the initial term") and thereafter unless and until
his employment shall at any time be terminated in accordance with
clauses 13 or 14, or by either party giving to the other not less than
12 months' prior written notice of termination expiring on or after
the expiry of the initial term.
3) POWERS AND DUTIES
(A) The Executive shall exercise such powers and perform such duties (not
being duties inappropriate to his status) in relation to the business
of the Company or any Associated Company as may from time to time be
reasonably vested in or assigned to him by the Company or the parent
Company. The Executive shall comply with all reasonable directions
from, and all regulations of, the Company.
(A) The Executive shall work such hours as may reasonably be required for
the proper performance of his duties whether or not within the normal
working hours specified in the Schedule hereto, and shall devote the
whole of his time, attention and abilities during those hours to
carrying out his duties in a proper, loyal and diligent manner.
(B) The Executive shall travel to such places (whether in or outside the
United Kingdom and in such manner and on such occasions as the Company
or the Parent Company may from time to time reasonably require for the
proper performance of his duties hereunder.
(C) The Executive's normal place of work shall be at the Company's head or
principal office in London or (either temporarily or permanently) at
such other place within the United Kingdom as the Company may from
time to time determine.
(D) The Company shall be under no obligation to vest in or assign to the
Executive any powers or duties or to provide any work for the
Executive, and the Company may at any time or from time to time in
circumstances in which it reasonably believes that the Executive is
guilty of misconduct or in breach of this Agreement in order that the
circumstances giving rise to that belief may be investigated suspend
the Executive from the performance of his duties or exclude him from
any premises of the Company subject to the Company giving him its
reason in writing for so doing. No such suspension or exclusion shall
continue for more than 28 days. Salary will not cease to be payable
by reason only of such suspension or exclusion.
(E) Should the Company suspend or exclude the Executive under clause 3(E)
of this Agreement the period of such suspension shall be deducted from
the one year periods referred to in clauses 10(A) and 11(B) thereof.
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4) SALARY
(A) The Executive shall be paid monthly in arrears for his services during
his employment a salary (which shall accrue from day to day at the
rate of (Pounds)95,000 per annum or at such higher rate or rates as
the Board with the prior approval of the Parent Company may from time
to time determine and notify to the Executive in writing.
(B) The Executive shall also be paid such annual bonuses as the Board with
the prior approval of the Parent Company but otherwise in its absolute
discretion, may from time to time determine.
(C) The Company shall review the salary payable under this Agreement in
December of each year with a view to increasing it, but shall not be
obliged to increase it.
(D) The Executive shall not be entitled to any other salary or fees as an
ordinary or executive director or employee of the Company or of any
Associated Company and the Executive hereby waives any entitlement or
right which he might otherwise have to any such salary or fees.
5) CAR
The Company shall provide for the Executive (subject to his being qualified
to drive) a motor car suitable for a person of his status in accordance
with Group policy and shall bear or reimburse its running costs in
accordance with established Group policy. The Executive shall take good
care of the car, procure that the provisions of any policy of insurance are
observed and return the car and its keys to the Company's registered office
immediately upon the termination of his employment.
6) OTHER BENEFITS
(A) The Company shall provide or at its option pay for BUPA or equivalent
medical insurance protection for the Executive and his spouse and
dependent children in accordance with established company policy.
(B) The Executive shall when eligible be entitled to become a member of
the Company Pension Scheme and if he joins, benefits shall be provided
for and in respect of him thereunder in accordance with the trust deed
and rules thereof for the time being in force.
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7) EXPENSES
The Company shall reimburse to the Executive against production of receipts
if requested all reasonable travelling, hotel, entertainment and other out-
of-pocket expenses which he may from time to time reasonably and properly
incur in the execution of his duties hereunder.
8) INVENTIONS AND IMPROVEMENTS
(A) It shall be part of the normal duties of the Executive at all times:
(i) to consider in what manner and by what new methods or devices
the products, services, processes, equipment or systems of the
Company, or any Associated Company, with which he is concerned
of for which he is responsible might be improved; and
(ii) promptly to give the Secretary of the Company full details of
any invention or improvement which he may from time to time make
or discover in the course of his duties; and
(iii) to further the interests of the Company's undertaking with
regard thereto.
Subject to the Patents Xxx 0000 (as amended), the Company shall be
entitled free of charge to the sole ownership of any such invention or
improvement and to the exclusive use thereof.
(B) The Executive shall not either during his employment or thereafter
exploit or assist others to exploit any invention or improvement which
he may from time to tee make or discover in the course of this duties
or (unless the same shall have become public knowledge) make public or
disclose any such invention or improvement or give any information in
respect of it except to the Company or as it may direct.
9) CONFIDENTIALITY
(A) The Executive shall not, either during the continuance of his
employment or at any time after its termination:
(i) disclose to any person, firm or corporation any trade secret of
the Company or any Associated Company or any information
concerning the organization, business affairs or finances of the
Company or any Associated Company, or any information of which he
has knowledge or ought
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reasonably to have known, to be confidential, concerning
customers or other persons with which the Company or any
Associated Company has dealings, including, but not limited to,
any customer lists, price lists, marketing or sales plans or
information, designs products or research, which may come to his
knowledge during the course of his employment (except where such
disclosure is made in the proper performance of the Executive's
duties, or is authorized by the Company or is in comPliance with
the order of a competent court); or
(ii) use or attempt to use, for his own purposes or those of any
other person, firm or corporation, any such trade secrets or
confidential information in any manner which may injure or cause
loss either directly or indirectly to the Company or any
Associated Company.
(B) The provisions of clause 9(A) shall continue to apply after the
termination of the Executive's employment without limit in point of
time but shall cease to apply to information or knowledge which may
come into the public domain through no fault of the Executive.
10) NON-SOLICITATION
(A) The Executive will not for a period of one year after the termination
of his employment with the Company either personally or by an agent
directly or indirectly;
(i) either on his own account or for any other person, firm or
company or in association with or in the employment of any other
person, firm or company solicit or interfere with or endeavor to
entice away from the Company or any Associated Company any
person, firm or company who within one year prior to or at the
date of such termination was a customer of or in the habit of
dealing with the Company or any Associated Company and with whom
the Executive had contact in the course of his employment; or
(ii) either on his own account or for any other person, firm or
company solicit or interfere with or endeavor to entice away from
the Company or any Associated Company any person who, at the date
of such termination, was employed in an executive, managerial,
technical or sales capacity, or any person who was a director or
consultant of the Company or any Associated Company at the date
of such termination.
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(B) The Executive will not at any time after the termination of his employment
with the Company either personally or by an agent directly or indirectly
represent himself as being in any way currently connected with or
interested in the business of the Company or any Associated Company.
11) NON-COMPETITION
(A) During his employment the Executive shall not (unless otherwise agreed
in writing by the Company) undertake any other business or profession
or be or become an employee or agent of any other company, firm or
person or assist or have any financial interest in any other business
or profession or accept a directorship of any company other than the
Company. The Executive may, however, hold or acquire by way of bona
fide investment -only shares or other securities of any company or
companies which are listed or dealt in on any recognized Stock
Exchange or eligible shares in qualifying companies as those
expressions are defined in section 289 and section 293 respectively of
the Income and Corporation Taxes Act 1988 (Business Expansion Schemes)
unless the Company shall require him not to do so in any particular
case on the ground that such other company is or may be carrying on a
business competing or tending to compete with the business of the
Company or any Associated Company.
(B) The Executive will not for a period of one year after the termination
of his employment with the Company either personally or by an agent
directly or indirectly either on his own account or for any other
person, firm or company be engaged in or concerned directly or
indirectly in any executive managerial, technical or advisory capacity
in any business concern (of whatever kind) which is in competition
with the business of the Company or any Associated Company. This
clause will not restrain the Executive from being engaged or concerned
in any business concern in so far as the Executive's duties, work,
activities or services shall consist solely of:-
(i) duties or work performed or activities carried on or services
provided by him in any geographical area outside a radius of one
quarter of one mile from any location which has been the
Executive's place of work at any time during his employment with
the Company. The limitation contained in this sub-clause 11B(i)
shall not apply to the new Lloyd's Building (1986) in the City of
London.
(ii) duties, work, activities or services of a kind with which the
Executive was not concerned or involved
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in to a material extent during his employment with the Company of
any Associated Company.
12) RETURN OF PAPERS ETC.
The Executive shall promptly whenever requested by the Company and in any
event upon the termination of his employment deliver up to the Company all
lists of clients or customers, correspondence and all other documents,
papers and records which may have been prepared by him or have come into
his possession, or under his custody or control in the course of his
employment, and the Executive shall not be entitled to and shall not retain
any copies thereof. Title and copyright therein shall vest in the Company.
13) DIRECTORSHIP
The removal of the Executive from the office of Director of the Company or
the failure of the Company in general meeting to re-elect the Executive as
a Director of the Company if under the Articles of Association for the time
being of the Company he shall be obliged to retire by rotation or otherwise
shall terminate his employment under this Agreement. Such termination
shall be taken to be a breach by the Company of this Agreement unless at
the time of removal or failure to re-elect the Company was entitled to
terminate the Executive's employment in accordance with clause 14. The
Executive shall not during his employment resign his office as a Director
of the Company, or any Associated Company or do anything which could cause
him to be disqualified from continuing to act as such a Director.
14) TERMINATION OF EMPLOYMENT
If the Executive:
(i) shall be or become incapacitated from any cause whatsoever from
efficiently performing his duties hereunder for four consecutive
months or for ninety working days in aggregate in any period of
twelve consecutive months; or
(ii) shall be or become of unsound mind or be or become a patient for any
purpose of any statute (or any part thereof) relating to mental
health; or
(iii) shall have an order under section 254 of the Insolvency Xxx 0000 made
in respect of him or if an interim receiver of his property is
appointed under section 286 of that Act; or
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(iv) shall be or become prohibited by law from being a director; or
(v) shall be guilty of gross misconduct or shall commit any serious
or persistent breach of any of his obligations to the Company or
any Associated Company (whether under this Agreement or
otherwise); or
(vi) shall refuse or neglect to comply with any reasonable and lawful
orders given to him by the Company; or
(vii) shall fail, in the reasonable opinion of the Board, to perform
his duties competently (after having received prior written
warning of the shortcomings of his performance) then the Company
shall be entitled by notice in writing to the Executive to
terminate forthwith his employment under this agreement.
Any delay of forbearance by the Company is exercising any right
of termination shall not constitute a waiver of it.
15) MISCELLANEOUS
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(A) Notwithstanding the termination of this Agreement, the provisions of
this Agreement shall remain in force and effect insofar as may be
necessary to permit the obligations of the Executive hereunder which
are of a continuing nature to be enforced against him accordingly.
(B) Notwithstanding that any provision of this Agreement may prove to be
illegal or unenforceable, the remaining provisions of this Agreement
shall remain in force and effect.
16) NOTICES
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Any notice may be given personally to the Executive or to the Secretary of
the Company (as the case may be) or may be posted to the Company (for the
attention of the Secretary) at its registered office for the time being or
to the Executive either at his address given above or at his last known
address. Any such notice sent by post shall be deemed served forty eight
hours after it is posted and in proving such service it shall be sufficient
to prove that the notice was properly addressed and put in the post.
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17) SCHEDULE
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The provisions set out in the Schedule hereto as from time to time altered,
added to or abrogated shall apply as if incorporated in this Agreement.
The Company may from time to tee notify the Executive in writing that it
proposes to alter, add to or abrogate any provisions of the Schedule giving
details of the same. Unless the Executive shall within fourteen days of
such notice notify the Company in writing that he objects to the same, such
alteration, addition or abrogation shall be deemed to be agreed and shall
take effect accordingly.
18) OTHER AGREEMENTS
----------------
The Executive acknowledges and warrants that save for a shareholders'
agreement ("the Shareholders' Agreement") made between the Management
Shareholders (as defined in the Shareholders' Agreement), the investors (as
defined in the Shareholders' Agreement) and Stirling Xxxxx Xxxxx Holdings
Limited of the date hereof, there are not agreements or arrangements
whether written, oral or implied between the Company and any Associated
Company and the Executive relating to the employment of the Executive other
than those expressly set out in this Agreement and that he is not entering
into this Agreement in reliance on any representation not expressly set out
herein.
19) RESTRICTIVE TRADE PRACTICES ACT 1996
------------------------------------
The parties agree that no provision of this Agreement (or any other
agreement which, together with this Agreement may form part of an
arrangement for the purposes of the Restrictive Trade Practices Act 1976
(the "RTPA"), by virtue of which this Agreement is subject to registration
under the RTPA, shall take effect until the day after particulars of the
arrangements have been furnished to the Director General of Fair Trading by
the Company in accordance with the requirements of the RTPA.
20) GOVERNING LAW
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This Agreement shall be governed by and construed under English Law and
each of the parties hereby irrevocably agrees for their mutual benefit that
the Courts of England are to have jurisdiction to settle any disputes which
may arise out of or in connection with this Agreement.
IN WITNESS whereof this Agreement has been signed by or on behalf of the Parties
hereto the day and year first before written.
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SCHEDULE
--------
The following information is supplied pursuant to the Employment Protection
(Consolidation) Xxx 0000 (as amended):
(a) Disciplinary Rules. There is no formal Disciplinary Procedure applicable
to this employment.
The Executive shall be expected to exhibit a high standard of propriety in
all his dealings with and in the name of the Company and the Parent Company
and Associated Companies.
(b) Grievance Procedure. There is no formal grievance procedure applicable to
this employment. The Executive should in the first instance apply to the
Board in the event of his having any grievance relating to his employment.
If the Executive remains dissatisfied he should then apply in writing to
the Managing Direct of the Parent Company whose decision shall be final and
bearing.
(c) No Contracting Out Certificate is in force in connection with this
employment.
(d) Normal working hours are 9.00 am to 5.30 pm Monday to Friday inclusive with
an appropriate lunch break.
(e) The Executive will be required to work outside or beyond normal working
hours or at weekends or on holidays as may be necessary for the proper
performance of his duties, and no extra payment will be made for such work.
(f) In addition to bank and other public holidays the Executive will be
entitled to 25 days' holiday in every calendar year to be taken at such
time or times as may be approved by the Board. If the Executive has less
than 12 months' service during the calendar year, his holiday entitlement
is to be calculated on a pro-rata basis. Unless and until his employment
under this Agreement shall be determined under any provision thereof salary
will continue to be payable during holidays. Holidays not taken in any
calendar year or by the determination of his employment under this
Agreement will be lost. Upon determination of his employment other than
pursuant to clauses 14 (iii) and (vii) hereof, the Executive will be
entitled to pay in lieu of holiday accrued but not taken. If, upon the
termination of his employment with the Company, the Executive has taken
more days holiday than he is entitled to, the Company shall be entitled to
make an appropriate deduction from any final payment of salary.
(g) Subject to production, if requested, of medical certificates satisfactory
to the Company, remuneration will not cease to be payable by reason only of
the Executive's incapacity for work due to sickness or accident (unless and
until his employment under this Agreement shall be determined under any
provision
thereof) but any such remuneration shall include any sums the Company is
obliged to pay to the Executive pursuant to the Social Security Acts 1992
(Statutory Sick Pay) and the Company may reduce remuneration during
incapacity by an amount equal to any State benefit (excluding any lump sum
benefit) which the Executive would be entitled to claim during such
incapacity under the then current Social Security Acts (whether or not such
benefit is claimed by the Executive).
(h) Continuous Employment. No employment with any previous employer other than
an existing Group employer counts as part of the Executive's continuous
period of employment.
SIGNED by }
on behalf of the Company } /S/
in the presence of: } ------------------------------
SIGNED by the Executive }
in the presence of: } /S/
------------------------------
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