EXHIBIT 10.23
[WITHOUT PREJUDICE]
[SUBJECT TO CONTRACT]
DATED 23 MARCH 2004
▇▇▇▇▇▇▇▇▇ INTERNATIONAL INC.
TELEGRAPH GROUP LIMITED
-and-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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[DRAFT] COMPROMISE AGREEMENT
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▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Tel: ▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇▇▇
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TABLE OF CONTENTS
CLAUSE PAGE
1. TERMINATION OF EMPLOYMENT AND DEPARTURE ARRANGEMENTS.......... 1
2. RESIGNATION OF OFFICE......................................... 3
3. COMPENSATION FOR LOSS OF EMPLOYMENT........................... 4
4. TAX INDEMNITY................................................. 5
5. COVENANTS..................................................... 6
6. WARRANTIES AND COMPROMISE OF CLAIMS........................... 8
7. LEGAL FEES.................................................... 11
8. MISCELLANEOUS................................................. 11
9. INTERPRETATION................................................ 12
SCHEDULE 1.......................................................... 15
SCHEDULE 2.......................................................... 17
SCHEDULE 3.......................................................... 18
SCHEDULE 4.......................................................... 19
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[WITHOUT PREJUDICE]
[SUBJECT TO CONTRACT]
[DRAFT]
This COMPROMISE AGREEMENT is made on 23 March 2004
BETWEEN:
1. ▇▇▇▇▇▇▇▇▇ INTERNATIONAL INC. of ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
▇▇▇▇▇, ▇▇▇ ("▇▇▇▇▇▇▇▇▇");
2. TELEGRAPH GROUP LIMITED of ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
("TELEGRAPH"); and
3. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of to ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ (the EXECUTIVE)
WHEREAS:
(A) The Executive is presently employed by Telegraph on the terms and the
conditions set out in a service agreement dated 17 November 1992 (the
"EMPLOYMENT CONTRACT").
IT IS AGREED as follows:
1. TERMINATION OF EMPLOYMENT AND DEPARTURE ARRANGEMENTS
1.1 TERMINATION DATE
1.1.1 The Executive's employment with Telegraph shall terminate on 3 April
2004 (the "TERMINATION DATE"). Until the Termination Date:
(A) the Executive may not attend the offices of ▇▇▇▇▇▇▇▇▇ or
Telegraph or any other Related Entity save in order to collect
his personal possessions and communicate his departure (as
described in clause 5.1.3) at a time to be agreed with
Telegraph; or
(B) have any business contact with any customers, clients or
employees of ▇▇▇▇▇▇▇▇▇, Telegraph or any other Related Entity,
without the prior consent of the ▇▇▇▇▇▇▇▇▇ Board or the Telegraph
Board save in relation to carrying out his duties as a director of
▇▇▇▇▇▇▇▇▇.
1.1.2 The Executive will receive his P45 (made up to the Termination Date)
as soon as reasonably practicable after the Termination Date.
1.2 ANNOUNCEMENT
1.2.1 Telegraph will within 7 days of the date of this Agreement announce
the Executive's departure in the terms of the draft announcement
attached at Schedule 1 and will deal with oral queries consistently
with the terms of that announcement without a gloss of any kind.
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1.3 SALARY AND BENEFITS
1.3.1 Save as set out in this Agreement, the Executive's entitlement to
salary and all other benefits associated with his employment by
Telegraph shall continue until the Termination Date when they shall
cease.
1.4 PENSION
1.4.1 The Executive's active membership of The Telegraph Executive Pension
Scheme (the "PENSION SCHEME") shall cease with effect from the
Termination Date but he will remain a member of the Pension Scheme
for the purpose of receiving accrued benefits. The Executive will in
due course be sent a statement of his benefits under the Pension
Scheme and of the options available to him.
1.5 EXPENSES
1.5.1 Telegraph shall reimburse the Executive for all expenses properly
incurred by him in the performance of his duties in accordance with
its expenses policy.
1.6 COMPANY PROPERTY
1.6.1 The Executive, agrees to return (and not retain or create whether by
e-mail transmission or otherwise any copies of or extracts from) any
and all:
(A) board minutes and papers provided to him in respect of offices
held in or on behalf of any Related Entity other than those
under his control or in his possession as a direct result of
his directorship of ▇▇▇▇▇▇▇▇▇;
(B) lists of customers, correspondence, documents, and computer
printouts (including copies and extracts);
(C) computer disks, tapes, computer equipment (including leads and
cables);
(D) credit cards, security passes, keys;
(E) car (which is to be returned in good condition, fair wear and
tear and reported accidents excepted) together with all
relevant documents and keys; and
(F) other tangible items in his possession or under his control,
which belong to or relate to the business of any Related Entity or
their customers, clients or suppliers, to Telegraph's premises at 1
Canada Square, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇, on or before the
Termination Date. After returning such property, the Executive shall
at the request of Telegraph or ▇▇▇▇▇▇▇▇▇ provide a written
undertaking that he has complied with this clause.
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1.6.2 Subject to clause 1.6.3, Telegraph and ▇▇▇▇▇▇▇▇▇ and any Related
Entity will allow the Executive access to documents and other
materials which were in his possession during his employment for the
purpose of any inquiry or inspection or investigation under the
Companies Acts, the Financial Services ▇▇▇ ▇▇▇▇, the Financial
Services and Markets ▇▇▇ ▇▇▇▇ or similar legislation (whether in
this jurisdiction or in any other) or by any regulatory authority or
in connection with any proceedings brought against the Executive
provided that:
(A) the Executive provides the Telegraph Company Secretary with a
written request for access to such documents and other
materials setting out a description of the documents and
materials to which he requests access;
(B) the documents or other materials requested by the Executive
are reasonably necessary to the purposes of assisting such
inquiry or inspection or investigation; and
(C) allowing the Executive access to such documents or other
materials would not materially adversely affect the interests
of any Related Entity.
1.6.3 Nothing in Clause 1.6.2 shall prevent any Related Entity allowing
the Executive access to documents and other materials which were in
his possession during his employment where such access is required
by law or the regulations of any statutory or regulatory authority.
1.6.4 The Executive shall, prior to the Termination Date, provide to
Telegraph full details of all then current passwords used by the
Executive in respect of computer equipment belonging to any Related
Entity and, having forwarded a copy to Telegraph, will not retain
any computer drives, disks, tapes or other re-usable material in the
Executive's possession or under his control (but which do not belong
to any Related Entity) any information belonging or relating to the
business of any Related Entity, their customers, clients or
suppliers (other than any such material in the Executive's
possession or under his control as a direct result of, or which is
reasonably necessary for, his directorship of ▇▇▇▇▇▇▇▇▇).
2. RESIGNATION OF OFFICE
2.1 The Executive hereby resigns with effect from the date of this Agreement
from:
2.1.1 each and every directorship, office or and appointment which he
holds in any Related Entity; and
2.1.2 acting as a trustee of any pension fund or employee benefit trust in
which any Related Entity is a participating company
save that, in respect of ▇▇▇▇▇▇▇▇▇, he shall remain as a director but
resign from his position of Chief Operating Officer.
2.2 The Executive agrees to sign and return to the Telegraph Company Secretary
a letter in the form of the attached Schedule 2 resigning from each such
directorship, office or appointment within 24 hours of being provided by
the Telegraph Company Secretary
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with a list of each directorship, office or appointment in any Related
Entity which he held immediately before execution of this Agreement.
3. COMPENSATION FOR LOSS OF EMPLOYMENT
3.1 COMPENSATION PAYMENT
3.1.1 As compensation for the Executive's loss of employment with
Telegraph, Telegraph shall pay to the Executive (without any
admission of liability) the sum of(pound)118,963 less such
deductions for income tax and employee's National Insurance
Contributions as are legally required (whether in respect of this
payment or the provision of any other payment or benefit to the
Executive) in accordance with clause 3.1.2; and
3.1.2 Telegraph shall pay to the Executive, the sum referred to in clause
3.1.1 within 14 days after the later of the Return Date and the
Termination Date.
3.1.3 Telegraph considers that the first(pound)30,000 of the termination
payment paid to the Executive under clause 3.1.1 may be paid free of
tax. Telegraph understands that income tax on the balance of the
payment under 3.1.1 can be deducted at the basic rate and the
Executive will account to the Inland Revenue for the marginal rate
of tax in due course.
3.2 TELEGRAPH BENEFITS
3.2.1 Telegraph will permit the Executive (subject to the consent of the
relevant provider and to the rules of the applicable scheme) to
continue to participate in the Telegraph's private health insurance,
permanent health insurance and life assurance arrangements on the
current basis until the relevant renewal date but only insofar as
Telegraph has already paid the relevant scheme provider for such
arrangement until such renewal date. Telegraph will notify the
Executive prior to the Termination Date of the dates on which each
such arrangement shall expire in respect of the Executive.
3.3 ▇▇▇▇▇▇▇▇▇ STOCK OPTIONS
3.3.1 In relation to the existing vested stock options granted to the
Executive under the ▇▇▇▇▇▇▇▇▇ 1997 Stock Incentive Plan and the
▇▇▇▇▇▇▇▇▇ 1999 Stock Incentive Plan (the "PLANS") (the brief details
of which are set out in Section 1 of Schedule 4 of this Agreement)
(the "VESTED OPTIONS"):
(A) subject to clause (B) below, it is confirmed that
notwithstanding the provisions of any relevant stock option
plans, ▇▇▇▇▇▇▇▇▇ shall procure that the Executive shall be
entitled to exercise all Vested Options granted to him under
the Plans within 30 days of the Termination Date, failing
which exercise the options shall lapse automatically; and
(B) if, in respect of any particular day, ▇▇▇▇▇▇▇▇▇ notifies the
Executive (or prior to the Date of this Agreement has notified
the Executive) that he is prohibited from exercising some or
all of the Vested Options or if the Executive is prohibited by
law from exercising some of all of the Vested Options then
that day shall not count towards the 30 days within which he
must exercise the Vested Options. Accordingly the
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reference in clause 3.3.1(A) to 30 days means an aggregated
period of 30 days on which no such restriction on exercise of
the Vested Options shall apply. ▇▇▇▇▇▇▇▇▇ undertakes that the
Company Secretary of ▇▇▇▇▇▇▇▇▇ will give to the Executive
seven days' advance written notice of the date on which such
period of restriction will lapse, or if this is not reasonably
practicable, to notify the Executive in writing of the lapse
of such restrictions as soon as reasonably practicable and, in
any event, within 24 hours of the lapse occurring. The Company
Secretary of ▇▇▇▇▇▇▇▇▇ also undertakes to notify the Executive
in writing of any further period of restriction on the
exercise of the Vested Options at the same time that other
parties bound by such restriction are notified.
3.3.2 In relation to the existing unvested stock options granted to the
Executive under the ▇▇▇▇▇▇▇▇▇ 1999 Stock Incentive Plan (the "1999
PLAN") (the brief details of which are set out in Section 2 of
Schedule 4 of this Agreement) (the "UNVESTED OPTIONS"), it is
confirmed that all Unvested Options granted to the Executive under
the 1999 Plan shall be forfeited automatically on the Termination
Date.
3.3.3 It is agreed that the Executive has no rights in respect of any
awards of shares or stock over any Related Entity or options over
shares or stock in any Related Entity other than in respect of the
Vested Options as set out in clause 3.3.1.
4. TAX INDEMNITY
4.1 Telegraph is proceeding on the basis that the first (pound)30,000 of the
payment it makes to the Executive in accordance with clause 3.1 will not
be subject to the deduction of tax and will therefore pay it to the
Executive free of tax. However, the amount of tax for Telegraph and
▇▇▇▇▇▇▇▇▇ is ultimately a matter for the Inland Revenue and any other
competent tax authority, and the Executive shall be responsible for the
payment of any taxes and any interest, penalties or fines in connection
with such taxes, imposed by any competent taxation authority in respect of
all payments of any nature paid to the Executive under this Agreement or
in connection with the termination of his employment with any Related
Entity (including any income tax on the first (pound)30,000 of payment
that Telegraph makes to the Executive in accordance with clause 3.1 but
excluding secondary class 1 National Insurance Contributions to the extent
that recovery of the same from the Executive is prohibited by law) save
where such interest, penalties or fines arise out of the delay, error or
default of ▇▇▇▇▇▇▇▇▇, Telegraph or any Related Entity of its or their
failure to account to the Inland Revenue for deductions which have been
made.
4.2 Subject to clause 4.3 below, the Executive undertakes to ▇▇▇▇▇▇▇▇▇,
Telegraph (for themselves and on behalf of all other Related Entities) to
indemnify each Related Entity in full (on a continuing basis) against any
such taxes and any interest, penalties, costs or fines in connection with
such taxes imposed by any competent taxation authority in respect of all
payments of any nature paid to the Executive under this Agreement or in
connection with the termination of his employment with any Related Entity
(including any income tax on the first (pound)30,000 of payment that
Telegraph makes to the Executive in accordance with clause 3.1 but
excluding secondary class 1 National Insurance Contributions to the extent
that recovery of the same from the Executive is prohibited by law).
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4.3 ▇▇▇▇▇▇▇▇▇ and Telegraph will each forthwith upon receipt by it or any
Related Entity of any request for payment, assessment, demand or other
notification of liability or potential liability to tax or National
Insurance contributions, interest, penalties or fines, or it or they
otherwise becoming aware of any circumstances which may give rise to a
claim under the indemnity in clause 4.2 forward such request, assessment,
demand or notification or notify such circumstances to the Executive and
shall thereafter take only such action in relation thereto as the
Executive may reasonably require and shall co-operate fully in any
challenge which the Executive may pursue to such request, assessment,
demand, notification or circumstances.
5. COVENANTS
5.1 Subject to clause 5.6 and in consideration of the payment by Telegraph of
(pound)1,000 (such payment to be made within 14 days after the later of
the Return Date and the Termination Date and less any legally required
deductions) the Executive undertakes as a condition of this Agreement to
each of ▇▇▇▇▇▇▇▇▇ and Telegraph for itself and on behalf of all other
Related Entities as follows:
5.1.1 the Executive will not (unless authorised to do so by either the
▇▇▇▇▇▇▇▇▇ Board, the Telegraph Board or in connection with
proceedings before a Court or tribunal of competent jurisdiction)
directly or indirectly:
(A) use for his own benefit or for the benefit of any persons; or
(B) disclose or permit the disclosure of
any confidential information of any Related Entity which the
Executive has obtained by virtue of his employment or in respect of
which he is aware that any Related Entity is bound by an obligation
of confidence to a third party. Confidential information shall
include, without limitation, information relating to the business,
affairs, products or processes, business plans, forecasts,
information relating to research products, future business strategy,
tenders and any price sensitive information of any Related Entity.
This restriction shall not apply to any information in the public
domain other than by reason of unauthorised disclosure;
5.1.2 the Executive will treat the contents of this Agreement as
confidential and will not disclose or cause to be disclosed the
negotiations surrounding this Agreement, the fact of this Agreement
and any of its terms to any person, firm or company save to the
Executive's spouse, for the purpose of receiving professional
advice, in connection with proceedings before a Court or tribunal of
competent jurisdiction or as required by law or the regulations of
any statutory or regulatory authority or, insofar as such disclosure
is consistent with the contents of the announcement at Schedule 1,
in connection with any application for or negotiation over future
employment, engagement or participation in a business venture;
5.1.3 save with the prior written consent of either ▇▇▇▇▇▇▇▇▇ or Telegraph
(such consent not to be unreasonably withheld or delayed) or as
required by law or the regulations of any statutory or regulatory
authority, the Executive will not make or issue or cause to be made
or issued any statement (internally or externally) relating to his
employment with ▇▇▇▇▇▇▇▇▇ or Telegraph or office in
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any Related Entity (other than in connection with performing his
duties as a director of ▇▇▇▇▇▇▇▇▇), his departure from any Related
Entity or the reasons for his departure (such consent to come from
the ▇▇▇▇▇▇▇▇▇ Board or the Telegraph Board or a person duly
authorised by either such board for the purpose) save that the
Executive will be permitted to personally advise senior Telegraph
staff of his retirement in terms consistent with the contents of the
announcement at Schedule 1;
5.1.4 save as required by law or the regulations of any statutory or
regulatory authority, the Executive will not make, publish or cause
to be made or published any statement or remark which may harm the
business or reputation of any Related Entity or any officer,
employee, agent, customer, supplier or shareholder of any such
entity;
5.1.5 if at any point the Executive is called upon by any Related Entity
to provide assistance in any litigation or potential litigation with
which any Related Entity may be involved, he shall provide such
assistance as ▇▇▇▇▇▇▇▇▇, Telegraph or any other Related Entity may
reasonably require, including but not limited to assisting in
preparing witness statements and attending at court to give
evidence. Telegraph, ▇▇▇▇▇▇▇▇▇ or any other Related Entity shall
meet any reasonable costs and expenses incurred by the Executive in
providing such assistance including the Executive's reasonable legal
costs in seeking advice in connection with such assistance; and
5.1.6 prior to the Termination Date, the Executive shall comply with all
reasonable requests of Telegraph or ▇▇▇▇▇▇▇▇▇ to ensure that a
smooth transition of his responsibilities can be effected to any
successor(s) or other colleague(s).
5.2 Telegraph and ▇▇▇▇▇▇▇▇▇ undertake for themselves and on behalf of all
other Related Entities, as a condition of this Agreement as follows:
5.2.1 save as provided by clause 1.2 above or with the prior written
consent of the Executive (such consent not to be unreasonably
withheld or delayed), or as required by law, the regulations of any
statutory or regulatory authority, or in connection with proceedings
before a Court or tribunal of competent jurisdiction, they will not
make or issue or cause to be made or issued any statement
(internally or externally) relating to the Executive's employment
with ▇▇▇▇▇▇▇▇▇ or Telegraph or office in any Related Entity (other
than in connection with performing his duties as a director of
▇▇▇▇▇▇▇▇▇), his departure from any Related Entity or the reasons for
his departure;
5.2.2 save as required by law or the regulations of any statutory or
regulatory authority or in connection with proceedings before a
Court or tribunal of competent jurisdiction, they will not authorise
or publish or cause to be made or published on behalf of Telegraph,
▇▇▇▇▇▇▇▇▇ or any Related Entity any untrue, misleading, derogatory
or disparaging statement or remark about the Executive and shall use
their reasonable endeavours to procure that none of the directors,
officers or senior employees of Telegraph, ▇▇▇▇▇▇▇▇▇ or any Related
Entity make or publish or cause to be made or published any untrue,
misleading, derogatory or disparaging statement or remark about the
Executive.
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5.3 Subject to clause 5.5, in consideration of the payment by Telegraph
of(pound)100,000 less such deductions for income tax and employee's
National Insurance Contributions or any other taxes as are legally
required (whether in respect of this payment or the provision of any other
payment or benefit to the Executive), which shall be paid to the Executive
in accordance with clause 5.4, the Executive undertakes to Telegraph (for
itself and on behalf of all other Related Entities) as a condition of this
Agreement that he will not:
5.3.1 for a period of six months following the Termination Date, carry on,
set up, be employed, engaged or interested in a business anywhere:
(A) which is or is about to be in competition with the business of
any Related Entity as at the Termination Date with which the
Executive was actively involved during the twelve month period
immediately prior to Termination Date; and
(B) in which ▇▇▇▇ ▇▇▇▇▇ of Crossharbour (or any firm company, or
other entity with which ▇▇▇▇ ▇▇▇▇▇ of Crossharbour has a
material business interest) has a material business interest
save that this clause 5.3 shall not prohibit the Executive from
retaining any shares which he holds at the date of this Agreement in
Ravelston Corporation and ▇▇▇▇▇▇▇▇▇ Inc or from holding (directly or
indirectly) less than five per cent of any class of shares or other
capital of any company whose shares or other capital are listed on,
or dealt in on or under the rules of an investment exchange,
including any market comprised within such exchange, which is the
subject of a recognition order made in accordance with section 290
and 292, Financial Services and Markets ▇▇▇ ▇▇▇▇.
5.4 Subject to clause 5.5, Telegraph shall pay the Executive the sums referred
to clause 5.3 in six equal monthly instalments, the first of which shall
be payable within 14 days after the later of the Return Date and the
Termination Date, and the remaining five instalments shall be payable at
monthly intervals thereafter.
5.5 In the event the Executive does not comply with the terms of the
restrictive covenant set out in 5.3, Telegraph shall cease to have any
obligation to make any further payments to the Executive under clause 5.3.
5.6 Nothing in this Agreement shall preclude the Executive from making a
protected disclosure in accordance with the provisions set out in the
Employment Rights ▇▇▇ ▇▇▇▇.
6. WARRANTIES AND COMPROMISE OF CLAIMS
6.1 Save in relation to matters referred to in the decision of Vice Chancellor
▇▇▇▇▇▇ in the Court of Chancery of the State of Delaware in and for New
Castle County, dated 26 February 2004, reference C.A. No. 183-N the
Executive warrants that:
6.1.1 he has committed no material breach of duty (including fiduciary
duty) to Telegraph, ▇▇▇▇▇▇▇▇▇ or any other Related Entity; and
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6.1.2 he has no knowledge or suspicion that any employee or officer of any
Related Entity has committed or proposes to commit any serious
wrongdoing or serious breach of duty.
6.2 The Executive represents to Telegraph and ▇▇▇▇▇▇▇▇▇ (for themselves and on
behalf of any Related Entities and the current or former officers,
employees or agents of themselves and any Related Entities, together the
"AFFILIATES") that he accepts and he does hereby accept the terms of this
Agreement in full and final settlement of any claims he may have against
the Company or any of its Affiliates in respect of:
6.2.1 any common law claims, including any claim for breach of contract or
tort; or
6.2.2 any claim that he was unfairly dismissed under the Employment Rights
▇▇▇ ▇▇▇▇ ("ERA") Part X, Chapter 1, Section 94; or
6.2.3 any claim for a redundancy payment under the ERA, Part XI, Chapter
1, Section 135,
being claims previously intimated by or on behalf of the Executive and the
Executive warrants that, having been advised by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of ▇▇▇
▇▇▇▇▇▇▇▇, Ten Dominion Street, London, EC2M 2EE, he is not aware of any
other statutory claim that he may have against ▇▇▇▇▇▇▇▇▇, Telegraph and/or
any such Affiliate.
6.3 Without prejudice to clause 6.2, the Executive further represents to each
of ▇▇▇▇▇▇▇▇▇ and Telegraph (for themselves and on behalf of all their
Affiliates) that he accepts and he does hereby accept the terms of this
Agreement in full and final settlement of any Claims that he may have
against ▇▇▇▇▇▇▇▇▇, Telegraph or any of their Affiliates relating to his
employment, office or the holding of any office, the termination of his
employment or of any office including (without limitation) any action that
might be commenced before an Employment Tribunal or Court of law or any
other tribunal or Court of law of competent jurisdiction in respect of:
6.3.1 any claim(s) under European Law or pursuant to the European
Convention of Human Rights;
6.3.2 any claim in respect of unpaid wages and deductions from wages under
ERA Part II, Section 13;
6.3.3 any claim under the ERA relating to a protected disclosure as
defined in part IVA of the ERA, and any other claim under the ERA;
6.3.4 any claim under the Sex Discrimination ▇▇▇ ▇▇▇▇, Race Relations ▇▇▇
▇▇▇▇, the Disability Discrimination ▇▇▇ ▇▇▇▇, the Employment
Equality (Sexual Orientation) Regulations 2003, or the Employment
Equality (Religion or Belief) Regulations 2003 (together the
"DISCRIMINATION LAWS") or any related EU legislation; or
6.3.5 any claim under the Working Time Regulations 1998; or
6.3.6 any other statutory claims or for breach of statutory duties; or
6.3.7 or any claim in connection with his employment or its termination
thereof with any Related Entity under US or Canadian law.
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6.4 For the purposes of clause 6.3, "CLAIMS" shall mean claims that have
arisen at the date of this Agreement or which subsequently arise in
respect of acts or omissions occurring prior to the date of this Agreement
and shall include any claim or right of action of which at the time of
entering into this Agreement:
6.4.1 neither the Executive nor ▇▇▇▇▇▇▇▇▇, Telegraph (nor any Affiliate)
is aware; and
6.4.2 the Executive but not the ▇▇▇▇▇▇▇▇▇ or Telegraph (nor any Affiliate)
is aware,
including any claim or right of action arising from a subsequent
retrospective change or clarification of the law. The Executive
acknowledges that he agrees to the terms of clause 6.3 notwithstanding
that he acknowledges that he may be mistaken as to the facts and/or the
law concerning any potential claim or right of action.
6.5 Clauses 6.2 and 6.3 shall not apply to:
6.5.1 any claim which the Executive may have for personal injury, or
6.5.2 any entitlement of the Executive under the Rules of the Pension
Scheme; or
6.5.3 any claim or entitlement of the Executive in connection with the
Vested Options (as referenced in clause 3.3 above).
6.6 The Executive acknowledges that the compromise of each of the claims set
out in the sub-clauses to clauses 6.2 and 6.3 is and shall be construed as
separate and severable and in the event of the compromise of any such
claim being determined as being void for any reason, such invalidity shall
not affect or impair the validity of the compromise of the other claims.
6.7 If the Executive issues or commences or causes to be issued or commenced
any proceedings in breach of any of clauses 6.2 or 6.3, any payment made
to the Executive under this Agreement must be repaid by the Executive to
Telegraph forthwith and will be recoverable by Telegraph as a debt
(without prejudice to or Telegraph's rights to any other remedy).
6.8 It is a condition of this Agreement, and the Executive confirms, that:
6.8.1 the Executive has received independent legal advice from ▇▇▇▇▇
▇▇▇▇▇▇▇▇, a relevant independent adviser in the firm of Fox
▇▇▇▇▇▇▇▇, Ten Dominion Street, London, EC2M 2EE, as to the terms and
effect of this Agreement and in particular its effect on his ability
to pursue his rights before an Employment Tribunal;
6.8.2 the conditions in Section 203 of the Employment Rights ▇▇▇ ▇▇▇▇ and
the equivalent provisions in the Discrimination Laws, the Working
Time Regulations 1998, regulating Compromise Agreements are
satisfied; and
6.8.3 the relevant independent adviser named at clause 6.8.1 will provide
to the ▇▇▇▇▇▇▇▇▇'▇ and Telegraph's solicitors forthwith upon the
execution by the Executive of this Agreement a letter duly signed
and dated in the form of the agreed draft at Schedule 3.
6.9 Nothing in this Agreement:
10
6.9.1 shall preclude the Executive from defending legal proceedings
brought against him nor from asserting any counter-claim or set-off
(other than for compensation in respect of any claims referred to in
clauses 6.2 or 6.3) or from joining Telegraph or ▇▇▇▇▇▇▇▇▇ or any
Related Entity or any other third party in legal proceedings; or
6.9.2 shall be deemed to release, waive or adversely affect any rights the
Executive has under any by-law, certificate, memorandum and articles
of association of Telegraph, ▇▇▇▇▇▇▇▇▇ or any Related Entity or by
law, policy or practice to defence and/or indemnity by Telegraph,
▇▇▇▇▇▇▇▇▇ and/or any Related Entity or any rights under any
liability insurance policy such as Directors and Officers Liability
Insurance.
6.10 Telegraph, ▇▇▇▇▇▇▇▇▇ and each Related Entity will maintain in force for a
period of six years from the Termination Date on a continuing basis
Directors' and Officers' liability insurance providing the Executive with
not less than the level of cover from time to time in force in respect of
other directors and officers of ▇▇▇▇▇▇▇▇▇ in order to protect the
Executive from claims in respect of the period during which the Executive
was a director of Telegraph, ▇▇▇▇▇▇▇▇▇ and any Related Entity.
7. LEGAL FEES
7.1 Telegraph agrees to pay the Executive's reasonable legal fees in
connection with taking advice leading to the completion of this Agreement
up to a maximum of (pound)10,000 plus VAT to be paid within 14 days of
receipt from the Executive's lawyer of a properly drawn invoice for costs
addressed to the Executive as client and marked payable by Telegraph.
8. MISCELLANEOUS
8.1 The rights of any Related Entities (other than ▇▇▇▇▇▇▇▇▇ and Telegraph) to
enforce the terms of this Agreement are subject to the term that the each
of ▇▇▇▇▇▇▇▇▇ and Telegraph has the right (which it may waive in whole or
in part and without the consent of or consultation with any Related Entity
other than ▇▇▇▇▇▇▇▇▇ or Telegraph) to have the sole conduct of any
proceedings in relation to the enforcement of such rights (including any
decision as to commencement or compromise of such proceedings) but will
not owe any duty or have any liability to any Related Entity in relation
to such conduct.
8.2 The parties to this Agreement may agree to rescind or vary any term of
this Agreement without the consent of any other Related Entities.
8.3 The terms of this Agreement shall prevail over the terms of the Employment
Contract where such terms in the Employment Contract conflict with this
Agreement in any way.
8.4 The Executive, ▇▇▇▇▇▇▇▇▇ and Telegraph each confirm that, except as
provided in this Agreement, neither he nor it has relied on any
representation, warranty, assurance, covenant, indemnity, undertaking or
commitment which is not contained in this Agreement and, without prejudice
to any liability for fraudulent misrepresentation, the only rights or
remedies in relation to any representation, warranty, assurance, covenant,
indemnity, undertaking or commitment given or action taken in connection
with this Agreement are contained in this Agreement, and for the avoidance
of doubt
11
and without limitation, the Executive nor ▇▇▇▇▇▇▇▇▇ nor Telegraph have any
right or remedy (whether by way of a claim for contribution or otherwise)
in tort (including negligence) or for misrepresentation (whether negligent
or otherwise, and whether made prior to, and/or in, this Agreement).
8.5 This Agreement shall be governed by and construed in accordance with
English law and the parties submit to the non-exclusive jurisdiction of
the English courts and tribunals.
8.6 This Agreement is without prejudice and subject to contract until it is
dated and signed by all of the parties, at which point it shall be treated
as an open document evidencing an agreement binding on the parties
(notwithstanding that it may still be labelled "Draft", "Without
Prejudice" or "Subject to Contract"). This Agreement may be executed in
any number of counterparts each in the like form, all of which taken
together shall constitute one and the same document and any party may
execute this Agreement by signing and dating any one or more of such
counterparts.
8.7 The Executive shall be deemed to have been served with any document or
notice referred to in this Agreement by virtue of any such document or
notice being either: (i) given personally to the Executive; or (ii) being
sent by post to ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇'▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (or such
address as the Executive may notify the Company Secretary of Telegraph
from time to time). The time of such service shall be either the date on
which the Executive receives the document or notice where service is given
personally, or two working days after such notice or document has been
posted where service is by post and posted within the same country, or
seven working days after such notice or document has been posted where
service is by post and posted from one country to another.
8.8 No variation of this Agreement shall be binding on either party unless and
to the extent that the same is recorded in a written document executed by
all parties.
9. INTERPRETATION
9.1 In this Agreement:
9.1.1 "AFFILIATES" shall have the meaning set out in clause 6.1;
9.1.2 "EMPLOYMENT CONTRACT" shall have the meaning set out in Recital (A);
9.1.3 "▇▇▇▇▇▇▇▇▇ BOARD" means the board of directors of ▇▇▇▇▇▇▇▇▇ from
time to time and includes any person or committee duly authorised by
the board of directors to act on its behalf for the purposes of this
Agreement;
9.1.4 "PENSION SCHEME" shall have the meaning set out in ▇▇▇▇▇▇▇.4.1;
9.1.5 "PLANS" shall have the meaning set out in clause 3.3.1;
9.1.6 "RELATED ENTITY" means Telegraph, ▇▇▇▇▇▇▇▇▇ and any other body
corporate:
(A) which for the time being is a subsidiary of ▇▇▇▇▇▇▇▇▇ or
Telegraph; or
(B) in whose equity share capital for the time being an interest
of 20 per cent or more is held directly or indirectly (through
another body corporate or other bodies corporate or otherwise)
by Telegraph,
12
▇▇▇▇▇▇▇▇▇ or any other subsidiary of ▇▇▇▇▇▇▇▇▇ or Telegraph,
or by a combination of two or more such companies or
subsidiaries,
where "SUBSIDIARY" shall have the meaning attributed to it by
sections 736 of the Companies ▇▇▇ ▇▇▇▇ provided that the term
"subsidiary" shall also include a subsidiary undertaking (as defined
in section 258 of the Companies Act 1985) and "EQUITY SHARE CAPITAL"
shall have the meaning attributed to it by section 744 of the
Companies ▇▇▇ ▇▇▇▇;
9.1.7 "RETURN DATE" shall mean the date on which the Company receives from
the Executive a signed copy of this Agreement and the attachment at
Schedule 3;
9.1.8 "TELEGRAPH BOARD" means the board of directors of the Telegraph from
time to time and includes any person or committee duly authorised by
the board of directors to act on its behalf for the purposes of this
Agreement; and
9.1.9 "TERMINATION DATE" shall have the meaning set out in clause 1.1.1;
9.1.10 "UNVESTED OPTIONS" shall have the meaning set out in clause 3.3.1;
9.1.11 "VESTED OPTIONS" shall have the meaning set out in clause 3.3.2;
9.2 In this Agreement, unless the context otherwise requires:
9.2.1 the contents page and headings and bold type face inserted in this
Agreement are inserted for convenience only and shall not affect the
interpretation of this Agreement;
9.2.2 references to clauses, sub-clauses and schedules are to clauses,
sub-clauses and schedules of this Agreement;
9.2.3 words in the singular include the plural and vice versa, and a
reference to any gender includes a reference to all genders or,
where appropriate, is to be read as a reference to the opposite
gender,
9.2.4 a reference to a person includes a reference to a body corporate, an
unincorporated body of persons and a partnership; and
9.2.5 a reference to a statute or statutory provision includes a reference
to that statute or provision as from time to time modified,
extended, replaced or re-enacted and to any subordinate legislation
made under the relevant statute or statutory provision.
IN WITNESS whereof the parties hereto have executed this Agreement as a Deed on
the day and year first above written.
13
SIGNED AS A DEED by )
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
In the presence of: ) /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
/s/ ▇▇▇ ▇▇▇▇
--------------------------
▇▇▇ ▇▇▇▇
Signature of Witness 6 HEATHFIELD HOUSE
Name of Witness (in print) ELIOT ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
SIGNED AS A DEED by )
▇▇▇▇▇▇▇▇▇ INTERNATIONAL INC. )
acting by ) /s/ ▇▇▇▇▇▇ ▇. PARIS
--------------------------
▇▇▇▇▇▇ ▇. Paris
Chairman, President and Chief Executive Officer
SIGNED AS A DEED by )
TELEGRAPH GROUP LIMITED )
acting by )
/s/ ▇▇▇▇▇▇ ▇. PARIS
-----------------------------
▇▇▇▇▇▇ ▇. Paris, Director
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Director
14
SCHEDULE 1
ANNOUNCEMENT
▇▇▇▇▇▇ DEEDES APPOINTED DEPUTY CHAIRMAN AND
CHIEF EXECUTIVE OFFICER OF THE TELEGRAPH GROUP
TELEGRAPH VETERAN TO LEAD NEWSPAPER GROUP AT LEAST THROUGH
CONCLUSION OF STRATEGIC PROCESS
▇▇▇▇▇▇ ▇▇▇▇▇▇ TO RETIRE FROM ▇▇▇▇▇▇▇▇▇ INTERNATIONAL
MANAGEMENT
NEW YORK, NEW YORK, MARCH XX, 2004 - ▇▇▇▇▇▇▇▇▇ International Inc. (NYSE:HLR)
announced today that ▇▇▇▇▇▇ Deedes, former managing director of the Telegraph
Group of newspapers, has been appointed Deputy Chairman and Chief Executive
Officer of the Telegraph Group, effective immediately. In that capacity, Mr.
Deedes will oversee the management of the Group at least through the conclusion
of the Strategic Process, under which ▇▇▇▇▇▇▇▇▇ International is evaluating
potential alternatives to maximize value for all shareholders.
Mr. Deedes replaces ▇▇▇▇▇▇ ▇▇▇▇▇▇, who today announced his retirement, effective
immediately, from all management and Board positions at ▇▇▇▇▇▇▇▇▇ International
and its subsidiaries other than his directorship of ▇▇▇▇▇▇▇▇▇ International.
▇▇▇▇▇▇ ▇▇▇▇▇, Interim Chairman and Chief Executive Officer, said, "We are
delighted that ▇▇▇▇▇▇ has agreed to assist us during this important time for
▇▇▇▇▇▇▇▇▇ International and the Telegraph Group. Jeremy's knowledge of the Group
and his perspective on the industry are invaluable assets. He is perfectly
suited to assume leadership of the Telegraph Group, and to look after the
interests of our staff, our readers and the shareholders of ▇▇▇▇▇▇▇▇▇
International."
"▇▇▇▇▇▇ will assist the Corporate Review Committee as it reviews potential
options for the Telegraph Group arising from the Strategic Process, and we look
forward to his counsel," continued Mr. Paris.
Mr. Deedes, 60, said: "I am not the first Deedes to be brought out of retirement
to help safeguard the future of these great publications. It is a great honour,
at this crucial time in the history of the Telegraph Group. I know that our
Group's principal asset is its staff, and our first task is to work around the
distractions of the Strategic Process that is currently underway. We must
continue to produce the best possible newspapers and look after a readership
that is the envy of our rivals.
"The past few months have been tough for all employees of the Telegraph Group,
and it is a great credit to all of them that the papers continue to thrive. With
support from the staff, the senior management team and our editors -- ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, and ▇▇▇▇▇ ▇▇▇▇▇▇▇, we will continue to dedicate
ourselves to what we do best -- producing the highest caliber newspapers,
expanding circulation, and increasing revenues and profitability."
15
▇▇. ▇▇▇▇▇▇ said, "Now that the deadline to submit bids under the Strategic
Process has passed, I believe this is the appropriate time for me to relinquish
my various operating roles with ▇▇▇▇▇▇▇▇▇ International and its subsidiaries.
"In particular, my more than 10 years as Chief Executive of the Telegraph Group
have provided a unique opportunity to work with some of the most talented people
in the newspaper industry.
"I will always be proud of the way in which we worked together to build and
expand our titles, consolidating and enhancing the Group's reputation for
innovation and a journalistic excellence built on sound commercial foundations."
▇▇▇▇▇▇ Deedes retired as managing director of the Telegraph Group in November
2003, after a career which spanned 40 years in newspapers. He was managing
director for seven years, and prior to that was Group Editorial Director for 10
years. Mr. Deedes was a journalist for 22 years, before moving into newspaper
management in 1985 to help set up Today newspaper with ▇▇▇▇▇ ▇▇▇▇. His father,
W.F. Deedes, is a former editor of the Daily Telegraph and at the age of 90
remains a much-read commentator and columnist with the paper.
▇▇▇▇▇▇▇▇▇ International Inc. is a global newspaper publisher with
English-language newspapers in the United States, Great Britain, and Israel. Its
assets include The Daily Telegraph, The Sunday Telegraph and The Spectator
magazine in Great Britain, the Chicago Sun-Times and a large number of community
newspapers in the Chicago area, The Jerusalem Post and The International
Jerusalem Post in Israel, a portfolio of new media investments and a variety of
other assets.
CAUTIONARY STATEMENT ON FORWARD-LOOKING STATEMENTS: Certain statements made in
this release are "forward-looking statements" within the meaning of the Private
Securities Litigation Reform Act of 1995 (the "Act"). Forward-looking statements
include, without limitation, any statement that may predict, forecast, indicate
or imply future results, performance or achievements, and may contain the words
"believe", "anticipate', "expect", "estimate", "project", "will be", "will
continue", "will likely result" or similar words or phrases. Forward-looking
statements involve risks and uncertainties, which may cause actual results to
differ materially from the forward-looking statements. The risks and
uncertainties are detailed from time to time in reports filed by ▇▇▇▇▇▇▇▇▇
International with the Securities and Exchange Commission, including in its
Forms 10 K and 10 Q. New risk factors emerge from time to time and it is not
possible for management to predict all such risk factors, nor can it assess the
impact of all such risk factors on the Company's business or the extent to which
any factor, or combination of factors, may cause actual results to differ
materially from those contained in any forward-looking statements. Given these
risks and uncertainties, investors should not place undue reliance on
forward-looking statements as a prediction of actual results.
CONTACTS:
US/CANADA MEDIA
▇▇▇▇▇ ▇▇▇▇▇
Kekst and Company
▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇-▇▇▇▇▇@▇▇▇▇▇.▇▇▇
UK MEDIA
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Kekst and Company
▇▇▇▇▇▇-▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
▇-▇▇▇-▇▇▇-▇▇▇▇
16
SCHEDULE 2
RESIGNATION
[TYPE ON HOME LETTERHEAD]
The Directors
[ ]
[Date]
In accordance with clause 2 of the Compromise Agreement dated [INSERT DATE]
March 2004 between me, ▇▇▇▇▇▇▇▇▇ International Inc. ("▇▇▇▇▇▇▇▇▇") and Telegraph
Group Limited ("TELEGRAPH") (the "AGREEMENT"), I hereby with effect on and from
23 March 2004 resign from my appointment as Director of the Companies set out in
the attached list and from all other offices and appointment which I hold for or
on behalf of any Related Entity (as defined in the Agreement) other than
▇▇▇▇▇▇▇▇▇ and as trustee of any pension fund or employee benefit trust in which
any Related Entity is a participating company.
I confirm that there are no sums due to me as Director of any Related Entity,
and that I have no claim for compensation arising out of my ceasing to hold the
said appointments or otherwise.
I confirm that I have not directly or indirectly disclosed for any reason to any
person or otherwise made use of any confidential information relating to the
business or affairs of any Related Entity or otherwise permitted such
disclosure.
I agree to abide by such terms of my appointment as Director of each Related
Entity as may subsist after my resignation.
17