Exhibit 10.9
PRIVATE AND CONFIDENTIAL
DATED December 23, 2002
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(1) PHASE FORWARD EUROPE LIMITED
(2) XXXXXXX XXXXXX
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SENIOR EXECUTIVE'S SERVICE AGREEMENT
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[PINSENT XXXXXX XXXXXX LOGO]
CONTENTS
CLAUSE PAGE
1. Definitions 1
2. Employment 3
3. Freedom to take up the Appointment 3
4. Term of Employment 3
5. Duties of the Executive 4
6. Hours of Work 6
7. Place of Work 6
8. Salary and Bonus 6
9. Expenses 7
10. Car Allowance 7
11. Pension and Life Assurance 7
12. Health Insurance Benefits 7
13. Holiday 8
14. Sickness 9
15. Termination of Employment 10
16. Suspension from Employment 13
17. Directorships 13
18. Office Communications 13
19. Reconstruction 14
20. Confidential Information 14
21. Post Termination Covenants 15
22. Inventions and Copyright 18
23. Misrepresentation 20
24. Disciplinary and Grievance Procedures 20
25. Data Protection 20
26. Third Party Rights 20
27. Previous Agreements 21
28. Notices 21
29. Law and Jurisdiction 21
30. General Provisions 21
THIS AGREEMENT is made on December 23, 2002
BETWEEN:-
(1) PHASE FORWARD EUROPE LIMITED (Number 3738680 whose Registered Office is at
00X Xxxxxxxx Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxx, XX00 0XX (the "COMPANY"); and
(2) XXXXXXX XXXXXX of Xxxxx Gate, Xxxxxx Xxxx, Xxxxxx Xxx, Xxxxx, XX0 0XX (the
"EXECUTIVE")
THE PARTIES AGREE as follows:-
1. DEFINITIONS
1.1 In this Agreement the following words and expressions shall have the
following meanings:-
"THE ACT" means the Employment Rights Xxx 0000
"ASSOCIATED COMPANY" means a company (which is not a Subsidiary or
Holding Company of a Group Company) of which
more than 20 per cent of the Equity Share
Capital is for the time being owned by a
Group Company or which for the time being
owns more than 20 per cent of the Equity
Share Capital of a Group Company
"BOARD" means the Board of Directors of the Company
from time to time
"COMPENSATION COMMITTEE" means the committee of Phase Forward
Incorporated, set up to determine executive
remuneration throughout the Group as
appointed from time to time
"COPYRIGHT WORK AND DESIGN mean respectively any copyright work or
RIGHT WORK" design right work originated, conceived,
written or made by the Executive alone or
with others which relates or may relate to
any product, service, process, equipment,
system or activity of any Group Company
"EMPLOYMENT" means the employment of the Executive under
this Agreement or, where the context so
requires, the duration of the employment of
the Executive under this Agreement
"EQUITY SHARE CAPITAL" has the meaning given to it in section 744
of the Companies Xxx 0000
"GROUP" means
(i) the Company
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(ii) any Holding Company for the time being of the Company
(iii) any Subsidiary for the time being of the Company or
of the Company's Holding Company
(iv) any Associated Company
"GROUP COMPANY" means the Company and any other member of the Group from
time to time
"HOLDING COMPANY" have the meanings given to them respectively in section 736
AND "SUBSIDIARY" of the Companies Xxx 0000
"INVENTION" means any invention, discovery or improvement including
(without limitation) any know how, design, process, drawing,
formula, computer programme or specification which relates
or may relate to any product, service, process, equipment,
system or activity of any Group Company whether or not now,
or at any future time, capable of being the subject of a
United Kingdom or any other patent
"MINORITY HOLDER" means a person who, whether solely or jointly, holds or is
beneficially interested in the shares or securities of any
company quoted on any Recognised Investment Exchange
provided that such holding or interest does not exceed 1 per
cent of any single class of such shares or securities. In
calculating whether a person is a Minority Holder there
shall be aggregated with any shares or securities held by
him or to which he is beneficially entitled any shares or
securities of the same class which his spouse or any child
of his under the age of 18 years holds or is beneficially
entitled to
"PERSON" includes any natural or legal person and any unincorporated
firm, undertaking or similar body
"QUALIFYING SHARES" any shares required to be held in accordance with the
articles of association of the Company and/or any other
Group Company by virtue of the Executive being a director of
the Company or any Group Company or at the request of the
Company or any Group Company excluding, for the avoidance of
doubt, any shares awarded to or provided to or purchased by
the Executive under any share purchase or share option
scheme
"RECOGNISED has the meaning given to it in section 285 of the Financial
INVESTMENT Services and Markets Xxx 0000
EXCHANGE"
1.2 The headings in this Agreement are for convenience only and shall not
affect its interpretation or construction.
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1.3 A reference to any statutory or legislative provision includes a reference
to that provision as modified, replaced, amended and/or re-enacted from
time to time.
1.4 Any reference to the Executive shall, if appropriate, include his personal
representatives.
1.5 Words importing one gender include the other gender.
1.6 Any reference in this Agreement to a clause or sub-clause is to the
relevant clause or sub-clause of this Agreement.
1.7 Nothing in this Agreement shall be taken to prevent the Executive from
making a protected disclosure in accordance with the Public Xxxxxxxx
Xxxxxxxxxx Xxx 0000.
2. EMPLOYMENT
The Company shall employ the Executive and the Executive agrees to act as
Vice President, General Manager, International Operations of the Company.
3. FREEDOM TO TAKE UP THE APPOINTMENT
The Executive warrants that by virtue of entering into or performing any of
his duties under this Agreement or any other agreement made or to be made
between a Group Company and the Executive he will not be in breach of any
express or implied terms of any contract or of any other obligation binding
upon him and he will indemnify the Company and any other Group Company
against any costs, claims, liabilities and expenses (including legal
expenses on an indemnity basis) arising out of any such breach or alleged
breach by him.
4. TERM OF EMPLOYMENT
4.1 The Employment began on 1 April 2002 and no previous employment of the
Executive shall count as part of the Executive's continuous period of
employment for the purposes of the Act.
4.2 Subject to Clause 15 (Termination of Employment) the Employment shall be
subject to termination by either party giving to the other twelve months
prior notice in writing.
4.3 PAYMENT IN LIEU OF NOTICE
The Company may at any time in its absolute discretion terminate the
Employment forthwith by paying to the Executive, in lieu of the notice
period referred to in Clause 4.2 (term of employment) or Clause 15.4.1
(termination on account of illness or injury) or any unexpired portion
thereof, an amount equivalent to the Executive's basic salary and benefits
due under clauses 10, 11 and 12 of this Agreement for such period or part
period excluding any unearned commissions or bonus. Such a payment shall be
subject to such deductions for tax and national insurance as are required
by law and to any other authorised deductions.
4.4 GARDEN LEAVE
Without prejudice to the provisions of Clauses 4.3 (payment in lieu of
notice) and 15.2 (summary dismissal), the Company may, once notice of
termination has been given by either side require the Executive to cease
performing his job for such period or periods of the notice period as the
Company shall in its absolute discretion determine. During any such period
of garden leave:-
4.4.1 the Company shall continue to pay the Executive's salary and shall
provide all benefits to which he is entitled under this Agreement;
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4.4.2 without prejudice to the Company's rights under Clause 5.3
(performance of alternative duties) the Company shall be under no
obligation to provide any work for the Executive and shall be
entitled to appoint any other person or persons to perform the
Executive's duties under this Agreement whether on a temporary or a
permanent basis;
4.4.3 the Company may forbid the Executive to enter any Group premises or
to contact any employees, officers, customers, clients, agents or
suppliers of the Group without its prior consent;
4.4.4 the Executive shall, at the request of the Board, immediately
deliver to the Company all or any property in his possession or
control which belongs to the Company or which relates to the
business of the Company, including without limitation, all items
mentioned in Clauses 15.6.1 and 15.6.2;
4.4.5 the Executive shall, at the written request of the Board,
(a) immediately resign (without claim for compensation) from all
and any directorships and other offices which he may hold in
any Group Company and from any other offices which he holds as
nominee or representative of any Group Company; and
(b) transfer without payment as the Company may direct, any
Qualifying Shares held by the Executive in accordance with the
articles of association of the Company and/or any other Group
Company
and in the event of his failure to do so within 7 days of the said
request the Executive hereby irrevocably authorises any director of
the Company for the time being in his name and on his behalf to
execute any documents or do anything else that is necessary to
effect such resignations and transfers; and
4.4.6 for the avoidance of doubt the Executive shall continue to be bound
by all the Executive's obligations under this Agreement insofar as
they are compatible with the Executive being on garden leave
including, without limit, the Executive's duty of good faith and the
Executive's duties under Clause 5.5 (Executive not to be employed in
any other business).
5. DUTIES OF THE EXECUTIVE
5.1 The Executive shall, in his capacity as Vice President, General Manager,
International Operations of the Company initially be responsible to the
Board for the management of the international sales, service and support
organisation for Phase Forward Incorporated. As discussed with the
Executive it is likely that Phase Forward Incorporated will in due course
appoint a Global Head of Sales and also a Global Head of Services in which
case the Executive's title as the Vice President, General Manager,
International Operations of the Company shall remain unchanged save that
the Executive may be required to report to either or both of any such
appointees together with the Board and the Chief Executive Officer of Phase
Forward Incorporated.
5.2 The Executive may be required by the Board for any period covered by this
Agreement and without being entitled to further remuneration to act as an
officer of any Group Company or hold any other appointment or office as
nominee or representative of any Group Company.
5.3 The Executive accepts that the Company may at its reasonable discretion
require him to perform other, alternative or different duties or tasks
commensurate with his status but not
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within the scope of his normal duties and the Executive agrees to perform
those duties or undertake those tasks as if they were specifically required
under this Agreement.
5.4 During the Employment the Executive shall at all times:-
5.4.1 use his best endeavours to promote the interests and reputation of
the Group giving at all times the full benefit of his knowledge,
expertise and skill;
5.4.2 faithfully and diligently and to the best of his ability exercise
such powers and perform such duties in relation to the Group's
business as the Board may from time to time require;
5.4.3 keep the Board promptly and fully informed (in writing if so
required by the Board) of his conduct of the business of the Group
and provide the Board with all information regarding the affairs of
the Group and his conduct in relation thereto as it shall require;
5.4.4 conform to the instructions or directions of the Board and
implement and apply the policy of the Company as determined by the
Board from time to time; and
5.4.5 refrain from making any false or misleading statements about the
Group.
5.5 The Executive shall not, save where there is no conflict of interest with
the business of the Company and provided always that by doing so the
Executive is not prevented from devoting his whole working time and
attention to the Company, during the Employment be directly or indirectly
employed engaged concerned or interested, whether as a director, employee,
sub-contractor, partner, consultant, proprietor, agent or otherwise, in any
other business, undertaking or occupation or the setting up of any other
business undertaking or occupation, or accept any other engagement or
public office but the Executive may nevertheless be or become a Minority
Holder.
5.6 The Executive shall not during or after the Employment knowingly or
willingly do or cause or permit to be done anything which is calculated or
may tend to prejudice or injure the interests of the Group and if during
the Employment the Executive shall learn of any act or omission by any
other person whether or not employed by the Group which is calculated or
may tend to prejudice or injure the interests of the Group he shall
promptly report it to the Board giving all necessary particulars.
5.7 The Executive shall comply with all applicable laws, regulations, rules and
codes of conduct including without limitation the Model Code on
Transactions in Securities by Directors and Relevant Employees issued by
the United Kingdom Listing Authority, the City Code on Takeovers and
Mergers and the Code of Market Conduct issued by the Financial Services
Authority together with any policy of the Company from time to time in
force in relation to:-
5.7.1 dealings in shares, debentures or other securities of the Company
or any other Group Company;
5.7.2 any unpublished price sensitive information affecting the
securities of any other company; and
5.7.3 any form of market abuse as defined by the Financial Services and
Markets Xxx 0000.
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6. HOURS OF WORK
6.1 The Executive shall devote the whole of his working time and attention to
the service of the Group except during holidays and any periods of absence
due to illness or injury.
6.2 The normal business hours of the Company are 9.00 am to 5.30 pm Monday to
Friday inclusive with a daily lunch break of 60 minutes and shall apply to
the Executive provided that the Executive shall be obliged to work such
further hours as may be necessary for the proper discharge of his duties
and shall not be entitled to receive any additional remuneration for work
outside normal business hours.
6.3 The Executive acknowledges that the limit in Regulation 4(1) of The Working
Time Regulations 1998 shall not apply to him and accordingly agrees that
his working time (including overtime) may exceed an average of 48 hours for
each 7 day period in the applicable reference period whenever necessary for
the proper discharge of his duties or in any event as may be required by
the Company. The Executive shall be entitled to withdraw such agreement by
giving 3 months prior written notice to the Company.
6.4 In this Agreement "WORKING TIME" has the meaning given to it in Regulation
2 of the Working Time Regulations 1998.
7. PLACE OF WORK
7.1 The Executive is required, in pursuant of his duties under this Agreement
to work within 25 miles of the current International Headquarters in
Maidenhead, Berkshire or as required in Central London.
7.2 For the purpose of performing his duties, the Executive shall undertake
such journeys in the United Kingdom and elsewhere (including the United
States and Asia) as may be required to fulfill the Executive's duties or as
the Board shall otherwise require. Travelling and other expenses shall be
reimbursed in accordance with Clause 9.
8. SALARY AND BONUS
8.1 During the Employment the Company shall pay to the Executive:
8.1.1 a basic salary at the rate of (pound)140,000 per year for 2002
which shall accrue from day to day and be payable by equal
monthly instalments in arrears on or about the 28th day of each
month; and
8.1.2 commission and a bonus calculated and payable in accordance with
the rules of the Company's compensation plan as communicated to
the Executive on an annual basis.
and such payments shall be deemed to include any fees or other remuneration
receivable by the Executive as a Director of any Group Company.
8.2 The Executive's compensation plan including basic salary, bonus and
commission shall be reviewed by the Compensation Committee in January each
year. For the avoidance of doubt it is agreed that the Executive shall have
no contractual right to any increase in his basic salary under this Clause.
8.3 For the purposes of sections 13 to 16 of the Act, the Executive hereby
consents to the deduction from his salary and bonus (or from any other sum
due from the Company to the Executive which falls within the definition of
"WAGES" in section 27 of the Act) of any sums owing by the Executive to the
Company or to any other Group Company at any time and he also agrees to
make payment to any Group Company of any sums owed by him to any
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Group Company upon demand by the Company at any time. This sub-clause
is without prejudice to the right of any Group Company to recover any
sums or balance of sums owed by the Executive to any such Group
Company by legal proceedings.
9. EXPENSES
9.1 The Company shall, subject to Clause 9.2, repay to the Executive all
travelling, hotel, entertainment and incidental expenses excluding any
car parking or road traffic offence fines reasonably incurred by him
in the proper performance of his duties.
9.2 The Executive shall provide all such receipts, vouchers and evidence
of expenses claimed by him as shall be required by the Company or its
Auditors.
9.3 If the Company provides the Executive with any credit or charge card
the Executive shall use such card solely for those expenses referred
to in Clause 9 and he shall immediately return any such card to the
Company whenever so required by the Board, and in any event in
accordance with the provisions of Clause 4.4.4 (garden leave), Clause
15.6.2 (termination of employment) and Clause 16.3 (suspension from
employment) where applicable.
10. CAR ALLOWANCE
10.1 During the Employment the Company shall pay to the Executive a car
allowance of (pound)1,250 per month which shall accrue from day to day
and shall be payable on or about the 28th of each month. This amount
shall be reviewed annually but for the avoidance of doubt it is agreed
that the Executive shall have no contractual right to any increase
under this Clause.
11. PENSION AND LIFE ASSURANCE
11.1 The Executive will be permitted to have 15% of his basic salary paid
into a Pension vehicle of his choosing.
11.2 The Company maintains a life assurance scheme (the "LIFE ASSURANCE
SCHEME") and the Executive shall be entitled to become and remain
throughout the Employment a member of the Life Assurance Scheme,
subject to the rules of the Life Assurance Scheme from time to time in
force, details of which will be provided to the Executive on request
by the Company Secretary. The Life Assurance Scheme will provide
benefits at 4x basic salary plus the value of benefits under clauses
10 to 12 of this Agreement. The Company shall be entitled at any time
to withdraw or amend any of the rules or benefits of the Life
Assurance Scheme and/or to terminate the Executive's participation in
the Life Assurance Scheme provided that if the Company does so it will
enable the Executive to become a member of a comparable scheme
providing comparable benefits subject to the terms of the scheme.
12. HEALTH INSURANCE BENEFITS
12.1 During the Employment the Executive shall be entitled to participate
at the Company's expense:-
12.1.1 in the Company's permanent health insurance scheme (the "PHI
SCHEME"); and
12.1.2 for himself, his spouse and his dependant children in the
Company's private medical expenses insurance scheme
(together "THE SCHEMES")
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subject always to the rules of the Schemes for the time being in force
(details of which are available on request from the Company Secretary)
and to the approval of the relevant insurer.
12.2 Notwithstanding Clause 12.1, the Company shall be entitled at any time:-
12.2.1 to terminate either or both of the Schemes; and/or
12.2.2 to withdraw or amend any of the rules or benefits of either or
both of the Schemes including the rules referred to in Clause
12.4
and subject to Clause 12.3 any such changes shall take effect as between
the Company and the Executive upon the Executive receiving written
notice of the same from the Company, such notice to be signed by a
director (other than the Executive) or some other duly authorised
officer or agent of the Company and served on the Executive in person or
delivered by hand or first class, recorded delivery post to his last
known private address in the United Kingdom in accordance with Clause
28. Provided always that if the Company does so it will enable the
Executive to become a member of comparable schemes providing comparable
benefits subject to the terms of the schemes.
12.3 Where the Executive is notified of any changes in accordance with Clause
12.2, any entitlement to benefit which has already accrued to him at the
time of the change will be dealt with in accordance with the rules of
the relevant scheme immediately prior to the change provided that
thereafter the Executive's entitlement under the Schemes (if any) shall
be subject to any changes which have been duly notified to him in
accordance with Clause 12.2.
12.4 The Executive's entitlement under the PHI Scheme will cease in
accordance with rules of the PHI Scheme.
12.5 The Executive will arrange at the Company's expense up to a contribution
of (pound)250 per annum for the Executive to have an annual health
assessment.
13. HOLIDAY
13.1 The Executive is entitled to 30 working days paid holiday in each
holiday year in addition to such bank and other public holidays as are
observed by the Company in accordance with the Company's holiday policy.
The holiday year runs from 1 January to 31 December and holiday
entitlement is to be taken at such times and on such notice as is agreed
by the Managing Director.
13.2 The Executive shall be entitled to carry forward any unused part of his
holiday entitlement to a subsequent holiday year subject to the limits
set out in the Company's Holiday Policy.
13.3 Where the Employment starts or terminates during a holiday year the
Executive will be entitled in that year to such proportion of his annual
holiday entitlement as equals the proportion of time he is employed
under this Agreement in that year, rounded to the nearest half day.
13.4 The Executive shall not be entitled to payment in lieu of any unused
part of his holiday entitlement, except on termination of the Employment
in accordance with Clause 13.5.
13.5 On termination of the Employment:-
13.5.1 the Executive shall be entitled to be paid in lieu of any
outstanding holiday entitlement or, as the case may be, shall be
obliged to repay to the Company salary in respect of holiday
take in excess of his entitlement in his final holiday
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year and subject to Clause 13.5.2 the basis for calculation in
either case shall be 1/250 of the Executive's annual basic
salary for each day; and
13.5.2 where the Executive has been summarily dismissed in accordance
with Clause 15.2 or where the Executive terminates the
Employment in breach of the notice provisions in Clause 4.2, the
calculation of any sum owed by the Executive in respect of
excess holiday entitlement shall be carried out in accordance
with Clause 13.5.1, but the amount of any payment in lieu of
outstanding holiday entitlement owed by the Company shall be
calculated as being (British Pound)1.
13.6 For the avoidance of doubt Regulations 15(1) to 15(4) of the Working
Time Regulations 1998 (the "REGULATIONS") do not apply to the
Employment; and
14. SICKNESS
14.1 If the Executive is absent from work due to illness or injury he will
notify the Company Secretary as soon as possible and, if practicable, on
the first working day of incapacity. The Executive shall complete any
self-certification forms which are required by the Company immediately
upon his return to work and, if his incapacity continues for more than 7
consecutive days (whether working days or not) shall produce medical
certificates to cover the duration of his absence from work. Provided
the requirements of this Clause 14.1 are satisfied, the Executive's
absence will be regarded as authorised.
14.2 Without prejudice to Clause 15 (termination of employment) and Clause
4.3) payment in lieu of notice) the Executive shall continue to receive
the normal remuneration including any bonus and other contractual
benefits due to him under this Agreement during any authorised period or
periods of absence due to illness or injury up to a maximum of 26
consecutive weeks. Thereafter he shall receive such benefits (if any) as
may be available to him under the Company's permanent health insurance
scheme. All remuneration payable under this Clause 14.2 shall be
inclusive of any statutory sick pay or social security or other benefits
to which the Executive is entitled (whether or not such benefits are
actually recovered).
14.3 For statutory sick pay purposes the Executive's qualifying days shall
be his normal working days.
14.4 The Executive may at the Company's expense be required during the course
of the Employment to attend a medical practitioner or clinic nominated
by the Company for the purpose of a medical examination to help
determine his fitness for continued Employment and he shall undergo any
tests and examinations reasonably required by the said medical
practitioner or clinic and shall co-operate in ensuring the prompt
delivery of any resulting report to the Company. Such an examination may
include or consist of tests for alcohol or drugs (including "CONTROLLED
DRUGS" as defined by the Misuse of Drugs Act 1971) where the Company has
reason to believe that the use of alcohol or drugs is adversely
affecting the Executive's performance at work or is posing a risk to
health and safety. Notwithstanding the provisions of the Access to
Medical Reports Xxx 0000 the Executive hereby consents to the Company
obtaining any medical report relating to his physical or mental health
prepared by a medical practitioner who is or has been responsible for
the clinical care of the Executive.
14.5 THIRD PARTY INJURY TO EXECUTIVE
14.5.1 If the Executive is absent from work by reason of any illness
or injury caused wholly or partly by any act or omission of any
third party in relation to which the Executive may be or become
entitled to recover damages or compensation, then all net
payments made to the Executive under this Clause 14 in respect
of the
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said absence shall be repaid by the Executive if and to the extent
that he recovers damages or compensation for loss of earnings from
the said third party and/or from the Criminal Injuries
Compensation Board or the Motor Insurers' Bureau or any other
similar body (the "RELEVANT BODIES") by action or otherwise.
14.5.2 Where the Executive receives any damages or compensation for loss
of earnings as referred to in Clause 14.5.1, he shall notify the
Company in writing forthwith and shall repay the amount due to the
Company under this Clause within 28 days of receipt of the said
damages or compensation.
14.5.3 For the avoidance of doubt, where the Executive receives damages
or compensation from a third party and/or the Relevant Bodies in
the circumstances referred to in Clause 14.5.1, and that
compensation includes an unspecified sum for loss of earnings,
then the amount owing to the Company under Clause 14.5.1 will be
such sum as is reasonable in all the circumstances.
14.6 The Company shall be entitled during any period during which the Executive
is absent due to illness or injury in excess of three months to appoint a
further executive to perform the duties and exercise the powers of the
Executive in his place on such terms and conditions as the Company shall
see fit.
14.7 For the avoidance of doubt the term "ILLNESS OR INJURY" as used in this
Clause 14 includes any mental or psychiatric illness and any injury,
whether or not this has been sustained in the course of the Executive's
duties.
15. TERMINATION OF EMPLOYMENT
15.1 GENERAL
15.1.1 The parties shall be entitled to terminate this Agreement by
giving notice in accordance with the terms of Clause 4.2 although
the Employment shall come to an end automatically without the need
for either party to give notice to the other when the Executive
reaches the age of 60.
15.1.2 For the avoidance of doubt, where there are no circumstances
justifying summary dismissal under Clause 15.2, the methods by
which the Company may terminate the Employment are not restricted
to the giving of notice in accordance with Clauses 4.2 (term of
employment) or 15.4.1 (termination on account of illness or
injury) or to the making of a payment in lieu of notice under
Clause 4.3 (payment in lieu of notice) and accordingly if the
Company terminates the Employment without giving notice or without
making a payment in lieu of notice then any damages to which the
Executive may be entitled shall be calculated in accordance with
ordinary common law principles including those relating to
mitigation of loss and accelerated receipt.
15.2 SUMMARY DISMISSAL
Notwithstanding the provisions of Clauses 4.2 (notice clause), 4.3
(payment in lieu of notice) and 15.4 (termination on account of illness)
the Company may by written notice to the Executive forthwith terminate the
Employment (without being under any obligation to pay any further sums to
the Executive whether by way of compensation, damages or otherwise in
respect of or in lieu of any notice period or unexpired term of this
Agreement, and without prejudice to any other rights of the Company) if
the Executive:-
15.2.1 materially fails or persistently neglects efficiently and
diligently to carry out his duties to the reasonable satisfaction
of the Board;
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15.2.2 is guilty of any material or persistent breach or non-observance
of any of the provisions of this Agreement;
15.2.3 is guilty of gross misconduct or any other conduct which, in the
opinion of the Board is calculated or likely to affect
prejudicially the interests of the Group whether or not such
misconduct or other conduct occurs during or in the context of the
Employment;
15.2.4 without the express written consent of the Board resigns or ceases
to hold office as a director of the Company or of any other Group
Company of which he had been appointed a director or is
disqualified from holding or ceases to be qualified to hold office
as a director by any court order, any provisions in the articles
of the Company or any other Group Company or under any provision
of general law from time to time save where this arises by reason
of him not being re-elected as a director of the Company at any
annual general meeting of the Company at which under the articles
of association he is to retire by rotation;
15.2.5 is convicted of any criminal offence (excluding an offence under
road traffic legislation in the United Kingdom and elsewhere for
which a penalty of imprisonment cannot be imposed);
15.2.6 is made the subject of a bankruptcy order or have a receiving
order or an administration order made against him or make any
composition or arrangement with his creditors generally or
otherwise take advantage of any statute from time to time in force
offering relief for insolvent debtors;
15.2.7 becomes addicted to or is habitually under the influence of
alcohol or any drug (not being a drug prescribed for the Executive
by a medical practitioner for the treatment of a condition other
than drug addiction) the possession of which is controlled by law;
15.2.8 is expelled, suspended or subject to any serious disciplinary
action by any relevant professional or other body as a result of
which he is no longer able to perform his duties under this
Agreement; or
15.2.9 becomes a patient within the meaning or the Mental Health Xxx
0000.
15.3 In the event that any part of the share capital of the Company shall be
quoted on any Recognised Investment Exchange it shall be a fundamental
term of this Agreement that the Executive shall comply at all times with
the Model Code for transactions in securities by directors and relevant
employees issued from time to time by the Financial Services Authority as
the United Kingdom Listing Authority (the "MODEL CODE") and it shall be
the responsibility of the Executive to make himself aware of the
provisions of the Model Code and the parties agree that (without prejudice
to the effect of any other conduct of the Executive) any breach by the
Executive of the Model Code shall be gross misconduct for the purpose of
Clause 15.2.3.
15.4 TERMINATION ON ACCOUNT OF ILLNESS OR INJURY
15.4.1 Without prejudice to Clauses 15.2 (summary dismissal) and 4.3
(payment in lieu of notice) and subject to Clause 15.4.2
(restrictions on dismissals in context of PHI scheme), but
notwithstanding any other provision of this Agreement, if the
Executive shall become unable to perform his duties properly by
reason of illness or injury for a period or periods aggregating at
least 180 days in any period of 12 consecutive calendar months
(the "PERIOD OR PERIODS OF INCAPACITY") then
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the Company may, by not less than three months prior written
notice to the Executive, terminate the Employment.
15.4.2 Where the Executive is receiving benefits under the PHI Scheme
(the "PHI BENEFITS") or where his absence due to illness or
injury may entitle him to PHI Benefits in the future, the Company
shall not terminate the Employment for any reason where to do so
would render the Executive ineligible for PHI Benefits or
eligible for a reduced rate of PHI Benefits PROVIDED THAT nothing
in this sub-clause shall prevent the Company from:-
(a) terminating the Employment pursuant to Clause 15.2 (summary
dismissal); or
(b) terminating the Employment under Clause 15.1.1 by reason of
redundancy; or
(c) terminating the Employment forthwith where the Executive
ceases to receive PHI Benefits and in such circumstances the
Executive agrees that the Company would be acting reasonably
in so terminating the Employment
and for the avoidance of doubt it is agreed that whilst the
Executive is absent from work and receiving PHI Benefits the
fact that the Employment continues by virtue of this sub-clause
shall not entitle the Executive to payment of his salary or to
any other benefits under this Agreement.
15.5 MISCELLANEOUS
On the termination of this Agreement for whatever reason, the Executive
shall at the written request of the Board:-
15.5.1 immediately resign (without claim for compensation) from all and
any directorships and other offices which he may hold in any
Group Company and from any other appointments or offices which he
holds as nominee or representative or any Group Company; and
15.5.2 transfer without payment as the Company may direct, any
Qualifying Shares held by the Executive in accordance with the
articles of association of the Company and/or any other Group
Company
and if he should fail to do so within 7 days of the said request the
Executive hereby irrevocably authorises any director of the Company for the
time being in his name and on his behalf to execute any documents or do
anything else that is necessary to effect such resignations and/or
transfers.
15.6 Upon termination of the Employment for whatever reason the Executive shall
forthwith deliver to the Company or its authorised representative such of
the following as are in his possession or control:-
15.6.1 all keys, security and computer passes, plans, statistics,
documents, records, papers, magnetic disks, tapes or other
software storage media including any copies thereof which belong
to the Group or which relate to the business of the Group
including all copies, records and memoranda (whether or not
recorded in writing or on computer disk or tape) made by the
Executive of any Confidential Information (as defined by Clause
20.5);
15.6.2 all credit cards and charge cards provided for the Executive's
use by the Company; and
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15.6.3 all other property of the Group not previously referred to in
this Clause.
16. SUSPENSION FROM EMPLOYMENT
In order to investigate a complaint of misconduct made against the
Executive the Company shall be entitled to suspend the Executive from
his duties on full pay with full entitlement to all other benefits to
which he is entitled under this Agreement for so long as the Board shall
consider necessary in order to facilitate a proper investigation of such
complaint and during such period of suspension:-
16.1 without prejudice to Clause 5 (duties of the Executive) the
Company shall be under no obligation to provide any work for the
Executive and shall be entitled to appoint any other person or
persons to perform the Executive's duties under this Agreement
whether on a temporary or a permanent basis;
16.2 the Company may forbid the Executive to enter any Group premises
or to contact any employees, officers, customers, clients,
agents or suppliers of the Group without its prior consent;
16.3 the Executive shall, at the request of the Board, immediately
deliver to the Company all or any property in his possession or
control which belongs to the Company or which relates to the
business of the Company, including without limitation all items
mentioned in Clauses 15.6.1 and 15.6.2; and
16.4 the Executive shall continue to be bound by all the Executive's
obligations under this Agreement insofar as they are compatible
with the Executive being suspended from duties, including
without limit the Executive's duty of good faith and the
Executive's duties under Clause 5.5 (Executive not to be
employed in any other business).
17. DIRECTORSHIPS
17.1 If during the Employment the Executive shall cease to be a director of
the Company or any other Group Company (otherwise than for a reason
justifying summary dismissal pursuant to Clause 15.2.4) the Employment
shall continue as if he had been employed as an Executive Manager with
the same status as previously save that the Executive shall not present
himself as a Director of the Company and the terms of this Agreement
(save those relating to the holding of the office of director) shall
continue in full force and effect.
18. OFFICE COMMUNICATIONS
18.1 During the Employment the Executive will have access to the Company's
telecoms and computer system (the "OFFICE SYSTEM") which provides for
communication by various means including telephone, fax, e-mail, voice
mail and video conferencing link and which also allows access to the
internet. The Office System (which includes without limitation any
mobile telephone or laptop computer provided by the Company to the
Executive) is intended primarily for business use and must be operated
and used strictly in accordance with Company policy including, where
relevant, the Company's IT Policy as varied from time to time. Breach of
any such policy will normally be treated as a serious disciplinary
matter.
18.2 The Company may, at any time during the Employment, where this is
necessary in the interests of the Company's business, monitor the
Executive's use of the Office System (whenever this occurs). This power
includes, without limitation, the ability to monitor:-
18.2.1 the timing, duration and contents of any communication
whatsoever sent by or to the Executive via the Office System;
and
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18.2.2 the Executive's access to and use of the internet and the
Executive consents to such monitoring taking place.
18.3 The Executive must not send any e-mails or other messages on the Office
System which are of a defamatory or abusive nature, which constitute
sexual or any other form of harassment or which are calculated to or may
tend to prejudice or injure the interests of the Group. In addition he
is prohibited from accessing or downloading any pornographic or other
offensive material on the Office System. The Executive agrees to
indemnify the Company during and after the termination of the Employment
against all liabilities arising from the Executive's breach of this
provision.
18.4 This Clause is without prejudice to the Executive's obligations under
Clause 25 (data protection).
19. RECONSTRUCTION
If the Employment of the Executive is terminated by reason of the
liquidation, reorganisation, or other reconstruction of the Company or
any other Group Company or as part of any other rearrangement of the
affairs of the Company or any other Group Company not involving a
liquidation, and the Executive is offered Employment by a reconstructed
Company or by another Group Company on substantially similar terms (for
the avoidance of doubt the Executive's basic salary and contractual
benefits shall be no less than those due under this Agreement and the
bonus opportunity for the Executive shall be on substantially similar
terms) and comparable status then, subject to the provisions of the
Transfer of Undertakings (Protection of Employment) Regulations 1981,
the Executive shall be obliged to accept such offer and shall have no
claim against the Company or any reconstructed or Group Company in
respect of the termination of the Employment.
20. CONFIDENTIAL INFORMATION
20.1 The Executive Director is aware that in the course of Employment under
this Agreement he will have access to and be entrusted with information
in respect of the business and finances of the Company and its dealings,
transactions and affairs and likewise in relation to any other Group
Company all of which information is or may be Confidential Information.
Accordingly the Executive gives the undertakings set out in this Clause
20 to the Company for itself and for the benefit of and as trustee for
any Group Company.
20.2 The Executive shall not during the Employment or afterwards use exploit
(except for the benefit of the Group) or divulge to any third party by
any means any Confidential Information except he shall be permitted to
do so:-
20.2.1 when necessary in the proper performance of the duties of his
Employment;
20.2.2 with the express written consent of the Board; or
20.2.3 where this is required by law.
20.3 The Executive shall, during the Employment, use his best endeavours to
prevent the unauthorised use or disclosure of any Confidential
Information whether by any other officer, employee or agent of the Group
or otherwise and shall be under an obligation promptly and freely to
report to the Board any such unauthorised use or disclosure which comes
to his knowledge.
20.4 The Executive shall not, during the Employment or at any time thereafter
make, except for the benefit of the Company or any other Group Company
any copy, record, or
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memorandum (whether recorded in writing, on computer disk or tape or
otherwise) of any Confidential Information and any such copy record or
memorandum made by the Executive during the Employment shall be and remain
the property of the Company and accordingly shall be returned by the
Executive to the Company on termination of the Employment in accordance
with Clause 15.6 or when required to do so by the Board pursuant to Clause
4.4.4 (garden leave) or Clause 16.3 (suspension from employment) or at any
other time during the Employment at the request of the Board.
20.5 In this Agreement "CONFIDENTIAL INFORMATION" means:-
20.5.1 all information which relates to the business, finances,
transactions, affairs, products, services, processes, equipment or
activities of the Company and any other Group Company which is
designated by the Company and any other Group Company as
confidential; and
20.5.2 all information relating to such matters which comes to the
knowledge of the Executive in the course of the Employment and
which, by reason of its character and/or the manner of its coming
to his knowledge, is evidently confidential
and shall include without limitation information as to improvements,
discoveries, developments, designs, algorithms, inventions, techniques,
strategies, new products, marketing plans, forecasts, unpublished
financial statements, business forms, contract forms, report formats,
budgets, projections, licenses, prices, costs, customer, client and
supplier lists and employees, and any other information of a similar
nature not available to the public, whether oral or written, in drawings
or in machine-readable form, and whether or not expressly marked
"Confidential" or "Proprietary" provided that information shall not be, or
shall cease to be, Confidential Information if and to the extent that it
comes to be in the public domain otherwise than as a result of the
unauthorised act or default of the Executive.
20.6 This Clause is without prejudice to the Executive's obligations under
Clause 25 (data protection).
21. POST TERMINATION COVENANTS
21.1 For the purposes of this Clause the following words and expressions shall
have the following meanings:-
21.1.1 "BUSINESS" the business or businesses of the Company or any
other Group Company in or with which the
Executive has been involved or concerned namely
business relating to computer software used in
the management of and data collection for
clinical trials of pharmaceutical products at
any time during the period of 12 months prior to
the Termination Date
21.1.2 "DIRECTLY OR the Executive acting either alone or jointly
INDIRECTLY" with or on behalf of any other person, firm or
company, whether as principal, partner, manager,
employee, contractor, director, consultant,
investor or otherwise
21.1.3 "KEY PERSONNEL" any person who is at the Termination Date or
was at any time during the period of 12 months
prior to the Termination Date employed or
engaged as a
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consultant in the Business in an executive or
senior managerial capacity and with whom the
Executive has had dealings other than in a
de minimis way during the course of the
Employment
21.1.4 "PROSPECTIVE any person, firm or company which has been
CLIENT" engaged in negotiations, with which the
Executive has been personally involved, with
the Company or any other Group Company with a
view to purchasing goods and services from
the Company or any other Group Company during
the period of 6 months prior to the
Termination Date
21.1.5 "RELEVANT AREA" within 50 miles of Maidenhead, Berlin, Paris,
Tokyo, Sydney, Boston or any city worldwide
in which the Company operates or has premises
or has a Relevant Client
21.1.6 "RELEVANT CLIENT" any person, firm or company which at any time
during the 12 months prior to the Termination
Date was a client of the Company or any other
Group Company, with whom or which the
Executive dealt regularly other than in a de
minimis way or for whom or which the
Executive was responsible on behalf of the
Company or any other Group Company at any
time during the said period
21.1.7 "RELEVANT GOODS any goods and services competitive with those
AND SERVICES" supplied by the Company or any other Group
Company at any time during the 12 months
prior to the Termination Date in the supply
of which the Executive was regularly involved
or concerned at any time during the said
period
21.1.8 "RELEVANT PERIOD" the period of the Employment and the period
of 6 months from the Termination Date except
that any period of garden leave served by the
Executive pursuant to Clause 4.4 shall reduce
the Relevant Period accordingly
21.1.9 "RELEVANT SUPPLIER" any person, firm or company which at any time
during the 12 months prior to the Termination
Date was a supplier of any goods or services
(other than utilities and goods or services
supplied for administrative purposes) to the
Company or any other Group Company and with
whom or which the Executive had personal
dealings during the Employment other than in
a de minimis way
21.1.10 "TERMINATION DATE" the date on which the Employment shall
terminate
21.2 Without prejudice to Clause 5.5 (Executive not to be employed in any other
business) the Executive shall not without the prior written consent of the
Board directly or indirectly at any time within the Relevant Period engage
or be concerned or interested in any business within the Relevant Area
which (a) competes or (b) will at any time during the Relevant Period
compete with the Business. Nothing in this sub-clause shall prevent the
Executive
16
from the being or becoming a Minority Holder provided that the
Executive discloses this to the Company.
21.3 The Executive shall not without the prior written consent of the Board
directly or indirectly at any time within the Relevant Period:-
21.3.1 (a) solicit the custom of; or
(b) facilitate the solicitation of; or
(c) deal with
any Relevant Client in respect of any Relevant Goods and Services; or
21.3.2 (a) solicit the custom of; or
(b) facilitate the solicitation of; or
(c) deal with
any Prospective Client in respect of any Relevant Goods and Services;
or
21.3.3 (a) interfere; or
(b) endeavour to interfere,
with the continuance of supplies to the Company and/or any other Group
Company (or the terms relating to those supplies) by any Relevant
Supplier.
21.4 The Executive shall not without the prior written consent of the Board
directly or indirectly at any time during the Relevant Period:-
21.4.1 entice away from the Company or any other Group Company; or
21.4.2 endeavour to entice a way from the Company or any other
Group Company; or
any Key Personnel.
21.5 The Executive shall not without the prior written consent of the Board
directly or indirectly at any time during the Relevant Period:-
21.5.1 employ or engage; or
21.5.2 endeavour to employ or engage
any Key Personnel.
21.6 The Executive acknowledges that the provisions of this Clause are
fair, reasonable and necessary to protect the goodwill and interests
of the Company and any other Group Companies (the "INTERESTS"). Whilst
the provisions of this Clause 21 have been framed with a view to
ensuring that the interests are adequately protected taking account of
the Group's legitimate expectations of the future development of the
business, it is acknowledged by the Executive that the business may
change over time and as a result it may become necessary to amend the
provisions of this Clause 21 in order to ensure that the Interests
remain adequately protected. The Executive, therefore, agrees that the
Company shall be entitled to propose amendments to the provisions of
this Clause 21 in accordance with Clause 21.7 below in order to
protect the interests.
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21.7 In order to amend the provisions of this Clause 21, the Company shall
notify the Executive in writing of why it believes it is necessary to
amend Clause 21 and the amendments which it proposes. The Executive shall
then have a period of 14 calendar days in which to put forward any
objections which he might have to the proposed amendments. In the event of
the Executive not putting forward any such objections, then this Clause 21
shall take effect with the proposed amendments on the expiry of the 14 day
period. In the event of the Executive putting forward any objections, the
Company shall endeavour to accommodate them, insofar as they are
reasonable and where reasonably possible, to agree the amendments with the
Executive.
21.8 The Executive acknowledges that the provisions of this Clause 21 shall
constitute severable undertakings given to the Company for itself and for
the benefit of and as trustee for each of the other Group Companies and
the said undertakings may be enforced by the Company on its own behalf and
on behalf of any of the other Group Companies.
21.9 If any of the restrictions or obligations contained in this Clause 21 is
held not to be valid on the basis that it exceeds what is reasonable for
the protection of the goodwill and interests of the Company and any other
Group Company but would be valid if part of the wording were deleted then
such restrictions or obligations shall apply with such deletions as may be
necessary to make it enforceable.
21.10 The Executive acknowledges and agrees that he shall be obliged to draw the
provisions of this Clause 21 to the attention of any third party who may
at any time before or after the termination of the Employment offer to
employ or engage the Executive in any capacity and for whom or with whom
the Executive intends to work during the Relevant Period.
21.11 The Executive shall, at the request and cost of the Company, enter into a
direct agreement or undertaking with any other Group Company to which the
Executive provides services whereby he will accept restrictions
corresponding to the restrictions in this Clause (or such of them as may
be appropriate in the circumstances) as the Company may require in the
circumstances.
22. INVENTIONS AND COPYRIGHT
22.1 It shall be a duty of the Executive during the Employment to consider and
keep under review the ways if any in which the products, services,
processes, equipment, systems and activities of the Company and any other
Group Company might be improved and/or enhanced.
22.2 If during the Employment the Executive alone or with others makes or
discovers any Invention he shall promptly disclose it to the Board giving
full particulars of it including all necessary drawings, models and
specifications and the Executive agrees and acknowledges that:-
22.2.1 because of the nature of his duties and the responsibilities
arising from them he has a special obligation to further the
interests of the Company so that all Inventions made by the
Executive in the performance of his duties or as a result of any
special project for the Company outside the scope of his normal
duties and all rights in such Inventions shall belong to the
Company; and
22.2.2 the provisions of this sub-clause:-
(a) shall not entitle the Executive to any compensation beyond
the salary and bonus to which he is entitled under Clause 8
of this Agreement except that in the case of any Invention on
which a British patent has been granted or
18
assigned to the Company where the Company has derived
outstanding benefit from such patent, the Executive may be
entitled by virtue of section 40 of the Patents Xxx 0000 to
claim additional compensation; and
(b) shall not restrict the Executive's rights under sections 39
to 43 of the Patents Xxx 0000.
22.3 The Executive shall promptly disclose to the Board any Copyright Work
and/or Design Right Work originated, conceived, written or made during
the course of the Employment and hereby acknowledges that by virtue of
the Employment the Copyright and/or Design Right in any such Work
vests automatically and forthwith in the Company.
22.4 The Executive hereby waives all and any moral rights (as defined in
Chapter IV of the Copyright Designs and Patents Act 1988).
22.5 The Executive shall, at the cost of the Company and on demand, execute
all such documents and do all such other acts as the Company shall
require to enable the Company or its nominee to obtain the full
benefit of any Invention, Copyright Work and Design Right Work to
which the Company is entitled and all the rights therein and to secure
such patent, utility, model, copyright or design registration or
similar protection in any part of the world as the Company may
consider appropriate.
22.6 The Executive shall give to the Company, or any successor in title
therefrom, such assistance as the Company may require (in its absolute
discretion) in connection with any dispute or threatened dispute
directly or indirectly relating to any Invention, Copyright Work or
Design Right Work or any associated right or registration or other
protection in respect thereof (including but not limited to the
execution of documents, the swearing of any declarations or oaths, the
providing of information and the participation in any proceedings
before any Court or tribunal).
22.7 The Executive shall not disclose to any other Person without the
consent of the Company being previously obtained (which if given may
be subject to conditions) the details of any Invention, Copyright Work
or Design Right Work.
22.8 The Executive hereby irrevocably authorises any director of the
Company for the time being in his name and on his behalf to execute
any documents and to do everything necessary to give effect to this
Clause 22.
22.9 If the Executive shall during the Employment make or discover any
Invention or make, originate, conceive or write any Copyright Work or
Design Right Work in which, despite the previous provisions of this
Clause, any intellectual property rights belong to the Executive and
not the Company then the Executive shall if so required by the Board:-
22.9.1 negotiate in good faith with the Company for the assignment
or licensing to the Company or its nominees of such rights;
and
22.9.2 until such rights shall be fully and absolutely vested in
the Company shall hold the same as trustee for the Company.
22.10 Decisions as to the patenting and exploitation of any Invention shall
be at the sole discretion of the Company and the Company shall not be
under any obligation to take any step or register any patent or other
right in respect of, or to develop or exploit, any Invention or
Copyright or Design Work made, discovered, originated, conceived or
written by the Executive.
22.11 Nothing in this Clause shall be taken to limit or derogate from the
obligations of the Executive under Clause 20 (confidential
information).
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23. MISREPRESENTATION
The Executive shall not, after termination of the Employment,
wrongfully represent himself as being employed by, or connected with,
the Company or any other Group Company.
24. DISCIPLINARY AND GRIEVANCE PROCEDURES
24.1 There is no specific disciplinary procedure which applies to the
Employment.
24.2 If the Executive is dissatisfied with any disciplinary decision or
seeks redress for any grievance relating to the Employment he should
raise the issue with the Managing Director of the Company. If this
does not lead to a resolution satisfactory to the Executive he may
formally refer the issue to the President and CEO of Phase Forward
Incorporated.
25. DATA PROTECTION
25.1 The Executive shall at all times during the Employment act in
accordance with the Data Protection Xxx 0000 (the "1998 ACT") and
shall comply with any policy introduced by the Company from time to
time to comply with the 1998 Act.
25.2 The Executive agrees to provide the Company in its capacity as Data
Controller with all Personal Data relating to him which is necessary
or reasonably required for the proper performance of this Agreement,
the administration of the employment relationship (both during and
after the Employment) or the conduct of the Company's business or
where such provision is required by law (the "AUTHORISED PURPOSES").
25.3 The Executive explicitly consents to the Company or any other Group
Company processing his Personal Data, including his Sensitive Personal
Data, where this is necessary or reasonably required to achieve one or
more of the Authorised Purposes.
25.4 The Executive acknowledges that the Company may, from time to time
collect or disclose his Personal Data (including his Sensitive
Personal Data) from and to third parties (including without limitation
the Executive's referees, any management consultants or computer
maintenance companies engaged by the Company, the Company's
professional advisers and any other Group Companies) and consents to
such collection and disclosure even where this involves the transfer
of such data outside the European Economic Area where this is
necessary or reasonably required to achieve one or more of the
Authorised Purposes.
25.5 The Company agrees to process any Personal Data made available to it
by the Executive in accordance with the provisions of the 1998 Act.
25.6 In this Clause "DATA CONTROLLER" "PERSONAL DATA" "PROCESSING" and
"SENSITIVE PERSONAL DATA" shall have the meaning set out in sections 1
and 2 of the 1998 Act.
26. THIRD PARTY RIGHTS
26.1 The Company and the Executive agree that no term of this Agreement
(including the terms of any documents incorporated either expressly or
by implication into this Agreement) shall be enforceable by a Third
Party in his own right by virtue of section 1(1) of the Contracts
(Rights of Third Parties) Xxx 0000 and for the avoidance of doubt this
Agreement may be rescinded or varied in whole or in part by agreement
between the Company and the Executive without the consent of any such
Third Party.
26.2 For the purposes of this Clause a "THIRD PARTY" means any person who
is not named as a party to this Agreement.
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27. PREVIOUS AGREEMENTS
This Agreement constitutes the entire understanding between the parties
with respect to its subject matter and supersedes all previous agreements
and undertakings (if any) relating to the employment of the Executive by
the Company or any other Group Company.
28. NOTICES
28.1 Any notice to be given under this Agreement by either party shall be in
writing and if given by the Company shall be signed by a Director (other
than the Executive) or some other duly authorised officer or agent of the
Company and if given by the Executive shall be signed by him.
28.2 Any notice to the Company shall be served at the address of its registered
office for the time being and may be delivered by hand or sent by first
class recorded delivery post.
28.3 Any notice to the Executive shall be served on him in person or at his
last known private address and may be delivered by hand to that address or
sent by first class recorded delivery post.
29. LAW AND JURISDICTION
29.1 This Agreement is governed by and shall be construed in accordance with
English law.
29.2 The parties submit to the exclusive jurisdiction of the English courts
with regard to any dispute or claim arising under this Agreement except to
the extent that it is provided elsewhere in this Agreement that such
dispute or claim should be resolved by any person acting as an expert.
30. GENERAL PROVISIONS
30.1 Any amendment to this Agreement (other than an amendment to Clause 21
which must be made in accordance with Clause 21.7) must be recorded in
writing and signed by the parties to be effective. For the avoidance of
doubt the provisions of this Clause do not apply to any amendments to the
Schemes referred to in Clause 12 which must be made in accordance with
Clause 12.2.
30.2 The complete or partial invalidity or unenforceability of any provision of
this Agreement for any purpose shall in no way affect:-
30.2.1 the validity or enforceability of such provisions for any other
purpose;
30.2.2 the remainder of such provisions; or
30.2.3 the remaining provisions of this Agreement.
30.3 This Agreement is intended by the Company to be a statement in writing of
the terms of the Employment under section 1 of the Act.
30.4 If there is any conflict between the provisions of this Agreement and the
provisions of the articles of association of the Company from time to time
the said articles shall prevail.
30.5 No waiver by the Company other than one made in writing by resolution of
the Board of any breach by the Executive of any provision of this
Agreement and no failure, delay or forbearance by the Company in
exercising any of its rights shall be taken to be a waiver of
21
such breach or right or shall prevent the Company from later taking any action
or making any claim in respect of such breach or right.
30.6 There are no collective agreements which directly affect the terms and
conditions of the Employment.
30.7 The Executive is not required to work outside the UK for a consecutive
period in excess of one month and accordingly there are no particulars in this
regard relevant to the Employment.
SIGNED by or on behalf of the parties on the date which first appears in this
Agreement
SIGNED by Xxxxxxx Xxxxxx ) /s/ XXXXXXX XXXXXX
) ---------------------------------
SIGNED by Xxxx X. Xxxxxxxxxx ) /s/ XXXX X. XXXXXXXXXX
(Director) for and on behalf ) ---------------------------------
of the Company
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