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DATED 3 APRIL 1997
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COUNTDOWN PLC
-AND-
C.E.C. RADBONE, ESQ.
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SERVICE AGREEMENT
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TEL: ▇▇▇▇ ▇▇▇ ▇▇▇▇
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THIS DEED OF AGREEMENT is made the 3rd day of April 1997
BETWEEN:
(1) Countdown Plc whose registered office is at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ("▇▇▇ Company"); and
(2) ▇▇▇▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the
Executive")
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
Defined terms and phrases for the purposes of this Agreement are set out in
Schedule 1.
2. JOB TITLE
2.1 The Company shall employ the Executive and the Executive shall
serve the Company as the Managing Director.
3. JOB DESCRIPTION, DUTIES AND RESPONSIBILITIES
3.1 The Executive shall carry out such duties, exercise such
powers and responsibilities as the Company may require from
time to time provided that such duties, powers and
responsibilities are consistent with the Executive's position.
3.2 During the period of his employment with the Company, the
Executive shall:-
3.2.1 report to the Board and/or such other person(s) as
the Company shall determine from time to time;
3.2.2 comply with such lawful directions as the Company or
any Associated Company to which he shall be seconded
shall give from time to time and with such rules and
regulations concerning his employment as shall apply
from time to time;
3.2.3 carry out his duties and exercise his powers and
responsibilities faithfully, efficiently and
diligently and use his utmost endeavours to maintain,
extend, develop and promote the interests and
reputation of the Company and the Associated
Companies;
3.2.4 keep the Company fully informed of his activities and
promptly provide such information and explanations as
may be requested from time to time by the Company
regarding such activities;
3.2.5 unless incapacitated by illness or injury, devote the
whole of his working time, attention and ability to
his duties under this Deed of Agreement;
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3.2.6 undertake such travel both outside and inside the
United Kingdom in such manner, on such occasions and
for such periods as the Company may reasonably
require for the proper performance of his duties.
3.3 Subject to any written regulations issued by the Company, the
Executive shall not without the prior consent of the Company
directly or indirectly receive or obtain any fee, gratuity,
commission, rebate, discount or other payment or benefit
whether in kind or otherwise from any Person as a consequence
of business transacted by the Company or any Associated
Company or otherwise as a result of his employment with the
Company.
3.4 The Executive shall not without the written prior approval of
the Board properly recorded by way of a Board minute:-
3.4.1 incur expenditure of an exceptional level or in
excess of such sums as may be authorised from time to
time;
3.4.2 dismiss any Key Person;
3.4.3 engage or employ a Key Person in circumstances where
such employee will receive a total annual
remuneration in excess of (pound)30,000 or such other
sum as the Board shall determine from time to time or
whose notice entitlement exceeds one month;
3.4.4 enter into on behalf of the Company or any Associated
Company any commitment, contract or arrangement
outside the scope of his normal duties or of an
unusual or onerous or long term nature or otherwise
than in the normal course of business.
4. TERM AND NOTICE
4.1 The Executive's employment with the Company under this Deed of
Agreement will commence on the date hereof.
4.2 The Executive's period of continuous employment with the
Company commenced in December 1970.
4.3 Subject to the provisions for earlier termination contained in
this Deed of Agreement, the Executive's employment shall
continue for an initial term of three years from the date
hereof and thereafter until terminated by either party giving
to the other not less than 3 months' written notice.
4.4 The Company reserves the right, at its discretion, to pay
basic salary in lieu of notice and to pay to the Executive a
sum in lieu of any of the benefits which the Executive is
contractually entitled to receive by virtue of his employment
under this Deed of Agreement during his notice period, such
sum to be equivalent to the value of providing such benefits
whether notice is given by the Company or by the Executive.
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5. REMUNERATION
5.1 During his employment with the Company, the Company shall pay
to the Executive:-
5.1.1 a basic salary at the rate of (pound)103,054 per
annum which shall accrue from day to day and be
payable by equal monthly instalments on or around the
last working day of each month or on such other day
in accordance with the Company's accounting practices
from time to time. Payment is made on that day in
respect of the whole calendar month.
5.1.2 the Executive's basic salary shall be reviewed by the
Company on or around 1 August each year and may be
increased by the Company with effect from that date
or such other date as the Company shall determine by
such amount (if any) as the Company shall determine
at its absolute discretion (without obligation).
5.2 The Company shall be entitled to deduct from the Executive's
salary and such other monies as may be payable or reimbursable
to the Executive all sums from time to time owing or otherwise
payable from the Executive to the Company or any Associated
Company.
5.3 Any benefits provided by the Company or any Associated Company
to the Executive which are not expressly referred to in this
Deed of Agreement shall be regarded as ex gratia and made at
the absolute discretion of the Company and shall not confer
any contractual entitlement upon the Executive or any third
party.
6. HOURS OF WORK
6.1 The Executive shall normally work 40 hours per week (Monday to
Friday inclusive) together with such additional hours outside
these hours, including hours at weekends or during holidays,
as are reasonably necessary for the proper performance of the
Executive's duties. The Executive shall not be entitled to
additional remuneration for work performed outside normal
working hours.
7. PLACE OF WORK
7.1 The Executive's place of work shall initially be the Company's
premises in London but the Company may require the Executive
to work either temporarily or permanently at such location in
the United Kingdom as the Company shall require from time to
time.
8. BENEFITS AND EXPENSES
8.1 Company Car
8.1.1 The Company shall provide the Executive with a Jaguar
motor car, or another motor car of an equivalent make
and
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model commensurate with the Executive's position, for
the Executive's business and personal use. The
company car may be used by members of the Executive's
immediate family at the Company's absolute discretion
from time to time.
8.1.2 The Company shall be responsible for the costs of
maintaining, servicing, taxing and insuring the
company car.
8.1.3 The Executive shall take good care of the company car
and comply with all regulations laid down by the
Company from time to time regarding its company cars
and shall forthwith notify the Company of any
accidents involving the company car and of any
charges brought against him or other users of the
company car arising from driving offences and on the
termination of his employment the Executive shall
forthwith return the company car to the Company at
its head office or such other location as the Company
shall direct together with all keys and other
documents relating to the company car.
8.1.4 Subject to 8.1.1, the company car may be replaced
from time to time at the Company's sole discretion
with a car of equivalent value.
8.1.5 The Company may withdraw the provision of the company
car if the Executive is disqualified from driving or
otherwise fails to maintain a valid current driving
licence entitling him to drive in the United Kingdom
but in such circumstances and provided that the
company car is not subject to lease, lease purchase
or hire purchase, the Executive shall be entitled to
additional salary in lieu thereof.
8.2 Pension
8.2.1 The Company shall, subject to statutory limits,
continue to pay the sum equivalent of (pound)20,000
per annum into the Countdown Self Administered
Pension Scheme on behalf of the Executive.
8.2.2 There is a contracting out certificate in force in
relation to the Executive's employment under this
Deed of Agreement.
8.3 Benefits Schemes
8.3.1 Subject always to their terms and conditions and
rules the Executive shall be entitled to participate
at the Company's expense in the following insurance
schemes from time to time:
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8.3.1.1 the Company's private medical insurance scheme;
8.3.1.2 the Company's permanent health insurance scheme;
8.3.1.3 an annual travel insurance scheme.
8.3.1.4 a Scottish equitable life insurance policy in favour
of Countdown plc (2) Executive Retirement and Death
Benefit Scheme.
8.3.2 The Company reserves the right to amend, substitute or replace
the above schemes.
8.4 Expenses
8.4.1 The Executive shall be reimbursed all reasonable
expenses properly, wholly and exclusively incurred by
him in the proper performance of his duties under
this Deed of Agreement subject to the approval of the
Company on the production of valid receipts or such
other supporting documentary evidence as the Company
may require and compliance with the Company's then
current regulations relating to expenses.
8.4.2 Where the Company issues a company credit or charge
card to the Executive, he shall use such card only
for expenses reimbursable by the Company and shall
return and cancel the card forthwith upon the
termination of his employment.
9. HOLIDAY
9.1 The Company's holiday year shall run from 1 January to 31
December.
9.2 In addition to Bank and other public holidays but subject to
the provisions of this Clause the Executive shall be entitled
to 30 working days' holiday in each holiday year at such
time(s) as may be convenient to the Company and which right
shall accrue from day to day. Any accrued entitlement to a
part day's holiday shall be rounded down.
9.3 Save with the prior written consent of the Company, the
Executive shall not be entitled to carry forward any accrued
holiday entitlement from one year to another.
9.4 Any holiday taken shall be in accordance with the Company's
rules and regulations governing holidays from time to time.
9.5 On the termination of the Executive's employment he shall be
entitled to be paid in lieu of accrued untaken holiday on a
pro rata basis and at the rate of 1/240 of his basic annual
salary for each untaken day's
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accrued holiday entitlement. If on the termination of his
employment the Executive has exceeded his approved pro rata
holiday entitlement for that holiday year, the excess will be
deducted at such rate from any sums due to the Executive and
to the extent that such deduction is insufficient such excess
will become repayable by the Executive at such rate.
9.6 The Company may require the Executive to take outstanding
holiday entitlement during any period of notice.
9.7 Holiday entitlement shall only accrue during any absence due
to illness or injury at the absolute discretion (without
obligation) of the Company.
10. INCAPACITY
10.1 If the Executive shall at any time be absent from work due to
illness or injury he shall as soon as reasonably practicable
inform the Company of the reason for his absence and its
anticipated duration and shall keep the Company informed of
such matters at such intervals as the Company may reasonably
require.
10.2 If the Executive is absent from work due to illness or injury
for more than seven days (including non-working days), he
shall as soon as is reasonably practicable thereafter send to
the Company a statement of his incapacity signed by a
registered medical practitioner and shall send such further
statements at such intervals as the Company may reasonably
require (which shall not be more than once weekly) to cover
the full period of absence. On each occasion that a medical
practitioner's certificate expires and the Executive does not
anticipate returning to work, he must notify the Company as
soon as practicable.
10.3 For Statutory Sick Pay purposes, the Executive's qualifying
days shall be his normal working days, which shall be Monday
to Friday.
10.4 The Company may at its expense at any time, if the Executive
is then incapacitated, require the Executive to undergo such
medical examinations and/or tests by such doctor(s) (and other
suitable medically qualified person(s)) as shall be nominated
by the Company and the Executive authorises such doctor(s) or
other person(s) to disclose to and discuss with the Company
and/or its medical adviser(s) the results of such examinations
and/or tests provided such disclosure is restricted to matters
which could affect the Executive's employment with the
Company.
10.5 If the Executive is absent due to illness or injury, providing
that he shall have complied with the terms of this Deed of
Agreement and the Company's then current regulations relating
to incapacity he shall be paid Company Sick Pay equivalent to
his basic salary for up to 13 weeks absence in aggregate in
any period of twelve months after which sick
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pay will be paid for such period as the Company in its
absolute discretion (without obligation) considers reasonable
in the circumstances.
10.6 Company Sick Pay payable to the Executive shall be reduced by
any Statutory Sick Pay received by the Executive and any State
or other benefits recoverable by the Executive (whether or not
recovered).
11. ASSOCIATED COMPANIES
11.1 The Company shall be entitled for such period(s) as the
Company may require from time to time to require the Executive
to hold such offices as the Company shall direct with any
Associated Company subject to the Executive's consent such
consent not to be unreasonably withheld or delayed.
12. DISCIPLINARY SICKNESS AND POOR PERFORMANCE PROCEDURE AND GRIEVANCE
PROCEDURES
12.1 There is no specific disciplinary procedure applicable to the
Executive's employment nor any specific provisions for dealing
with grievances. In the case of any grievance, the Executive
should apply to the Chairman.
12.2 In order to investigate any allegation of misconduct the
Company is entitled to suspend the Executive on full pay and
benefits for such period as the Company shall, at its absolute
discretion, determine appropriate in order to carry out a
proper investigation. During such investigation, the Executive
shall co-operate with the Company in its investigation into
the alleged misconduct.
13. TERMINATION
13.1 The Company shall be entitled to terminate the Executive's
employment summarily by notice if the Executive:-
13.1.1 is guilty of gross misconduct;
13.1.2 has committed a serious breach of a material term of
this Deed of Agreement other than a breach which
(being capable of being remedied) is fully remedied
by the Executive to the satisfaction of the Company
within a reasonable period of his being called upon
to do so;
13.1.3 has wilfully neglected or refused to discharge his
duties hereunder;
13.1.4 is grossly incompetent in the performance of his
duties;
13.1.5 acts or omits to act in such a way as likely to
prejudice the interests or reputation of the Company
or any Associated Company;
13.1.6 is convicted of any indictable offence excluding
offenses which do not affect the Executive's position
and excluding minor road traffic offenses not
resulting in imprisonment;
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13.1.7 becomes prohibited by law or disqualified from being
a director of a company;
13.1.8 becomes of unsound mind or a patient for the purpose
of any statute relating to mental heath;
13.1.9 commits an offence relating to insider dealing or is
in breach of the Model Code for Securities
Transactions by Directors of Listed Companies or any
other rules or regulations relating to any Recognised
Investment Exchange;
13.1.10 becomes bankrupt or makes any arrangement or
composition with or for the benefit of his creditors;
13.1.11 commits any act of dishonesty relating to and
adversely affecting the reputation or business of the
Company, any Associated Company.
13.2 The Executive will have no claim against the Company for
breach of contract if his employment is terminated with
immediate effect by reason of the liquidation of the Company
for purposes of amalgamation or reconstruction provided that
he is offered employment with the reconstructed or amalgamated
company on terms no less favourable than the terms of this
Agreement.
13.3 During any period of notice, and provided that the Company
continues to pay the Executive his salary and to provide all
benefits or to pay a sum in lieu of cost to the Company of
such benefits to him to which he is contractually entitled
until the termination of his employment, then the Company
shall be entitled at its discretion:-
13.3.1 to require the Executive not to carry out his duties
or to exercise his powers or responsibilities under
this Deed of Agreement during the remaining period of
his employment (or any part of such period);
13.3.2 to require the Executive to resign immediately from
any offices he may hold in the Company or in any
Associated Company;
13.3.3 to require the Executive not to attend his place of
work or any other premises of the Company or any
Associated Company during the remaining period of his
employment (or any part of such period);
13.3.4 to require the Executive to return to the Company all
documents, computer disks and other property
(including summaries, extracts or copies) belonging
to the Company or any Associated Company or to their
clients or customers containing confidential
information;
13.3.5 to appoint one or more persons to undertake the
Executive's duties and/or responsibilities and/or to
assume the Executive's position.
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13.4 Retirement
This Deed of Agreement shall terminate automatically on the
Executive reaching his normal retirement age (which is 65).
13.5 Obligations on Termination
On the termination of this Deed of Agreement for whatever
reason the Executive shall:
13.5.1 immediately return to the Company's offices or such
other location as the Company shall direct all
equipment, documents, credit or charge cards,
computer disks, computer software and hardware,
portable telephones, notes, specifications, Board
minutes and papers, plans, prototypes, keys, customer
or client lists, technical information and data,
reports and any other property (including copies,
summaries and excerpts) belonging to or relating to
the business of the Company or any Associated
Company, or created by the Executive in the course of
his employment by the Company, which are in the
Executive's possession or under his control;
13.5.2 at the Company's request resign as a director of and
from any other office held in the Company or any
Associated Company and the Executive having failed to
do so within twenty-one days of such request the
Company is hereby irrevocably authorised to appoint
some person to act as the Executive's attorney and in
his name and on his behalf to sign and execute any
documents and do such other acts to give effect to
this clause and the Executive agrees to ratify and
confirm all such acts done pursuant to any such power
of attorney.
13.6 The Executive will both during and at any time after the
termination of his employment under this Deed of Agreement
provide the Company or any Associated Company with such
assistance as it may require in the conduct of such
proceedings in any Court, Tribunal or other body of competent
jurisdiction as may arise in respect of which the Company any
Associated Company or its or their legal advisers believe the
Executive may be able to provide assistance provided that the
Company shall pay his reasonable out-of-pocket expenses
properly incurred in providing such assistance as they are
incurred.
14. RESTRICTIONS DURING EMPLOYMENT
14.1 The Executive shall not during his employment with the
Company, without the prior consent of the Company, be
Materially Interested in any other Person where this may
interfere, conflict or compete with the
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interests of the Company or any Associated Company or the
efficient performance of his duties.
14.2 The Executive shall not during his employment with the
Company, Directly or Indirectly, entice away or attempt to
entice away from the Company or any Associated Company or
otherwise discourage from being employed by the Company or any
Associated Company any employee of the Company or of any
Associated Company.
15. CONFIDENTIALITY
15.1 Without prejudice to the generality of the Executive's duty of
good faith, during the term of his employment under this Deed
of Agreement the Executive shall not, other than in the proper
course of his employment, use, publish or otherwise disclose
to any other Person any information relating to the Company,
any Associated Company its or their clients, affairs, finances
or business which:-
15.1.1 the Company or any Associated Company regards or may
regard as confidential; or
15.1.2 which has been made known to the Company or any
Associated Company or its or their officers,
employees or agents in circumstances in which an
obligation of confidentiality arose.
15.2 Without prejudice to any obligations of confidence owed by the
Executive to the Company (whether by virtue of an implied
contractual duty, an equitable duty of confidence or
otherwise) the Executive shall not at any time after the
termination of the Executive's employment under this Deed of
Agreement either use, publish or otherwise disclose to any
Person any trade secrets or confidential information capable
of such protection relating to the Company or any Associated
Company its or their clients, affairs, finances or business
and which, for the avoidance of doubt, shall include, without
limitation:-
15.2.1 lists or details of the Company's or any Associated
Company's actual or potential clients;
15.2.2 details of relationships or arrangements with or
knowledge of the needs or requirements of the
Company's or any Associated Company's actual or
potential clients;
15.2.3 information supplied in confidence by clients or any
third party to which the Company or any Associated
Company owes an obligation of confidentiality;
15.2.4 lists of and details of contracts with the Company's
or any Associated Company's Discounters;
15.2.5 information of a personal or otherwise of a
confidential nature relating to fellow employees
and/or Directors of the Company;
15.2.6 details of the Company's or any Associated Company's
business methods, finances, prices or pricing
strategy,
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marketing or development plans, product development
plans or strategies;
15.2.7 the Company's or any Associated Company's know-how;
15.2.8 confidential computer software.
This list is not exhaustive.
15.3 This clause shall not apply to information which might come
into the public domain other than in consequence of the
Executive's default.
15.4 The Executive shall not without the Company's prior consent
communicate with the press, broadcasting or other media
regarding the Company, any Associated Company or any of its or
their respective clients, officers or employees.
16. INTELLECTUAL PROPERTY
16.1 The Executive agrees and acknowledges that because of the
nature of his duties and responsibilities arising from his
employment, he is under a special obligation to further the
interests of the business of the Company and of any Associated
Company. Consequently, any invention made by the Executive in
the course of his employment shall belong to the Company.
16.2 The Executive assigns to the Company (by way of assignment of
all present and future Intellectual Property Rights) all
Intellectual Property Rights that vest in the Executive in all
or any Relevant Intellectual Property and the Executive agrees
to disclose promptly to the Company any such Relevant
Intellectual Property.
16.3 The Executive agrees to waive any moral rights including any
rights conferred by Sections 77-83 of the Copyright Designs
and Patents ▇▇▇ ▇▇▇▇ he has or may have in any Relevant
Intellectual Property against the Company, any Associated
Company, its or their employees, officers or agents.
16.4 The Executive agrees, at the Company's request, to exercise
during his employment by the Company or at any time after the
Termination Date any moral rights he has or may have pursuant
to Sections 77-83 of the Copyright Designs and Patents ▇▇▇
▇▇▇▇ or otherwise in any Relevant Intellectual Property
against such third party as the Company shall request and in
accordance with the Company's directions and the Executive
agrees not to exercise such moral rights other than in
accordance with this Clause.
16.5 The Executive agrees that he will execute such deeds and
documents and do such other acts and things as may be
necessary or desirable in the opinion of the Company to
substantiate, protect and/or maintain the Intellectual
Property Rights of the Company. The Executive
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acknowledges that, save as provided for by law, no further
remuneration or compensation other than that provided for in
this Deed of Agreement is or may become due to the Executive
in respect of the performance of his obligations under this
Clause. The assignment contained in this Clause shall not be
affected by reason of the termination of this Deed of
Agreement.
16.6 Decisions as to the substantiation, protection and/or
maintenance of any Intellectual Property Rights in any
Intellectual Property originated by the Executive shall be at
the sole discretion, without obligation, of the Company and
the Executive agrees that he shall have no claim or other
right of action against the Company should it decide not to
substantiate, protect or maintain any Intellectual Property
Rights originated wholly or partly by the Executive.
16.7 The Executive appoints the Company to be his attorney in his
name and on his behalf to execute, sign and do all such deeds,
instruments or things and generally to use the Executive's
name for the purposes of giving to the Company or its nominee
the full benefit of rights conferred under this Clause.
16.8 The Executive agrees to offer to the Company on arm's length
terms to be agreed with the Company, and to give the Company a
reasonable opportunity to acquire, any Intellectual Property
Rights in any Relevant Intellectual Property which do not vest
in the Company immediately such Intellectual Property Rights
shall come into effect and in the absence of agreement such
terms shall be determined by an arbitrator appointed by
agreement between the Company and the Executive (or in the
absence of agreement by the auditors of the Company) whose
costs shall be borne equally by the Company and the Executive.
17. RESTRICTIVE COVENANTS
17.1 The Executive agrees with and undertakes to the Company for
itself and as agent for every Associated Company that he will
not Directly or Indirectly following the Termination Date:-
17.1.1 for the period of 12 months be Materially Interested
in any Person providing Restricted Goods and/or
Services within the Restricted Area in competition
with the Company or any Relevant Associated Company;
17.1.2 for the period of 12 months entice away or endeavour
or attempt to entice away from the Company or any
Relevant Associated Company the Restricted Business;
17.1.3 for the period of 12 months solicit or attempt or
endeavour to solicit the custom of any Customer in
competition with the Company or any Relevant
Associated Company in order to supply Restricted
Goods and/or Services within the Restricted Area;
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17.1.4 for the period of 12 months supply Restricted Goods
and/or Services to any Customer in competition with
the Company or any Relevant Associated Company;
17.1.5 for the period of 12 months solicit or entice away
from the Company or any Relevant Associated Company
any Key Person;
17.1.6 for the period of 12 months offer employment to or
employ or enter into partnership or association with
(or offer so to do) or retain the services (or offer
to do so) whether as agent, consultant or otherwise
of any Key Person; or
17.1.7 for the period of 12 months solicit or attempt to
solicit or accept of place orders for or in any way
interfere with the supply or goods or services from
any Discounter where as a consequence such Discounter
may or is likely to cease supplying, reduce its
supply to or vary detrimentally the terms on which it
supplies such goods or services to the Company or any
Relevant Associated Company or any Joint Venture
Partner or any Licencee or any of their Customers; or
17.1.8 for the period of 12 months enter into contract with
or otherwise deal with any Joint Venture Partner or
any Licensee in competition with the Company or any
relevant Associated Company.
17.2 Each of the restrictions set out in this Clause shall be
considered separate from one another and it is acknowledged
that each sub-clause may contain more than one restriction.
For the avoidance of doubt each restriction insofar as it
applies to Associated Companies shall be separate from the
equivalent restriction as it applies to the Company.
17.3 While the restrictions set out in this Clause and the
definitions of "Customer", "Key Person", "Restricted Area",
"Restricted Business", "Restricted Goods and/or Services",
"Joint Venture Partner", "Licencee" and "Discounter" as set
out herein are considered by the parties to be reasonable in
all the circumstances it is agreed that if any one or more of
such restrictions or definitions shall either taken by itself
or themselves together be adjudged to go beyond what is
reasonable in all the circumstances for the protection of the
legitimate interests of the Company or any Associated Company
but would be adjudged reasonable if any particular restriction
or definition were deleted or if any part of the wording of
such restriction or definition were deleted then the parties
further agree that the said restrictions and definitions shall
apply with such deletions.
17.4 The restrictions set out in this Clause shall not prevent the
Executive from being a holder directly or indirectly by way of
bona fide investment only and subject to prior disclosure to
the Company of up to 3% of securities of any company which are
listed or dealt in on any Recognised Investment Exchange.
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18. GENERAL
18.1 This Deed of Agreement shall take effect in substitution for
all previous agreements or arrangements whether written, oral
or implied between the Executive and the Company relating to
the services or employment of the Executive and the Executive
warrants to the Company that he is not entering into this Deed
of Agreement in reliance on any representation not expressly
set out in this Deed of Agreement.
18.2 The Executive shall not make at any time, either during his
employment or at any time after its termination, any statement
or permit or authorise any statement to be made which is
calculated or reasonably likely to damage the reputation or
cause other damage to the Company, any Associated Company or
its or their employees or officers.
18.3 The Executive shall not at any time after the termination of
his employment with the Company wrongfully represent himself
as being employed by or otherwise connected in any way with
the Company or any Associated Company.
18.4 The failure or delay by either party in exercising any rights
under this Deed of Agreement shall not operate as a waiver of
such rights and also any single or partial exercise by either
party of any right shall not preclude any further exercise of
such rights or any other rights.
18.5 The Executive warrants that he is not subject to any
agreement, arrangement or understanding or subject to any
other restriction which in any way directly or indirectly
restricts or prohibits him from entering into this Deed of
Agreement or from fully performing his duties and
responsibilities set out in this Deed of Agreement.
18.6 The various clauses, sub-clauses, paragraphs, sub-paragraphs,
phrases and sentences in this Deed of Agreement are severable
and if any clause, sub-clause, paragraph or sub-paragraph or
any identifiable part is held to be invalid, void or
unenforceable by any Court, Tribunal or other body or person
of competent jurisdiction, this shall not affect the validity
or enforceability of the remaining provisions or identifiable
parts.
18.7 The construction, validity and performance of this Deed of
Agreement shall be governed by the laws of England and Wales
and the parties submit to the non-exclusive jurisdiction of
the Courts of England and Wales as regards any claim or matter
arising in respect of this Deed of Agreement.
18.8 No variation or amendment to this Deed of Agreement shall be
legally binding unless and until such variation or amendment
is confirmed in writing and signed by the Executive and a duly
authorised representative of the Company.
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18.9 References in this Deed of Agreement to statutes or other
legislation shall include any statute or legislation
modifying, re-enacting or made pursuant to such statute or
legislation.
18.10 Headings are for ease of reference and shall not be taken into
account in the construction of this Deed of Agreement.
18.11 The Schedule annexed to this Deed of Agreement forms an
integral part of this Deed of Agreement and any reference to
this Deed of Agreement shall be deemed to include a reference
to the Schedule.
18.12 There are no collective agreements which affect the
Executive's employment.
19. NOTICE
19.1 Any notice required to be given pursuant to this Agreement
shall be in writing and shall be deemed to have been duly
served if hand delivered or sent by facsimile or first class
post addressed to the relevant party's address as specified in
this Agreement or such other address as such party may
designate from time to time and in the case of the Company,
marked for the attention of the Company Secretary.
19.2 Any notice shall be deemed to have been served:-
19.2.1 if hand delivered, at the time of delivery (excluding
weekends and public holidays);
19.2.2 if sent by facsimile, at the time of transmission
(excluding weekends and public holidays);
19.2.3 if sent by post in the United Kingdom, 48 hours after
posting (excluding weekends and public holidays),
provided that delivery or transmission outside business hours shall be deemed to
have been served on the next business day.
THIS DEED OF AGREEMENT is executed as a Deed and is delivered on the date set
out at the commencement of this Deed of Agreement.
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SCHEDULE 1
DEFINITIONS
In this Agreement the following words or phrases shall, unless the context
requires otherwise, have the following meanings:
"ASSOCIATED COMPANY"
means a subsidiary of the Company, or a holding company of the Company, or
another subsidiary of a holding company of the Company or which is an
"associated undertaking" of the Company within the meaning of Paragraph 20(1) of
Schedule 4A of the Companies ▇▇▇ ▇▇▇▇ where "subsidiary" and "holding company"
have the meanings given by Section 736 of the Companies ▇▇▇ ▇▇▇▇ and any other
company designated by the Company as an Associated Company;
"THE BOARD"
means the Board of Directors of the Company (or any director or committee of
directors authorised by the Board of Directors of the Company);
"CUSTOMER"
means any Person who or which at any time during the period of 12 months
immediately prior to the Termination Date was the holder of a discount or other
card issued by the Company or any Relevant Associated Company or who otherwise
was entitled to receive the benefit of their schemes for members;
"DIRECTLY OR INDIRECTLY"
means (without prejudice to the generality of the expression) whether as
principal or agent; whether alone, jointly, in partnership with another or for
or on behalf of another; whether as a shareholder, director (including a shadow
director), agent, principal, partner, consultant, employee or otherwise; or by
virtue of providing financial assistance;
"DISCOUNTER"
means any Person who or which at any time during the period of 12 months prior
to the Termination Date has agreed to provide or provided goods and/or services
and/or concessions (by way of discount or otherwise) to Customers and/or to the
Company and/or to any Relevant Associated Company and/or to any Licencee and/or
to any Joint Venture Partner whether on favourable terms or otherwise;
"INTELLECTUAL PROPERTY"
includes (without prejudice to the generality of the expression) inventions,
designs, processes, notations, improvements, know-how, goodwill, reputation,
get-up, trade names, trade marks, logos, devices, plans, computer software,
models and literary, dramatic, musical and artistic works as defined by the
Copyright Designs and Patents ▇▇▇ ▇▇▇▇;
"INTELLECTUAL PROPERTY RIGHTS"
means the following rights for the full period such rights subsist and all
extensions and renewals of such rights in any part of the world:
(a) copyright;
(b) design rights (whether or not registered);
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(c) all accrued goodwill in any trade or service name (whether or
not registered), trading style or get-up;
(d) any patents or patent applications;
(e) any trade or service marks (whether or not registered)
including applications for such marks;
(f) all other industrial or intellectual property rights;
(g) rights under any licence or other agreement granted by or to
any other Person in respect of the use of any of the rights
listed above;
"JOINT VENTURE PARTNER"
means any Person
(a) with whom the Company or any Relevant Associated Company has
entered into a joint venture agreement for:-
(i) the development and/or exploitation of a business or
businesses the same as or similar to the Restricted
Business and/or;
(ii) the use and/or exploitation of the Intellectual
Property Rights owned or used by the Company or any
Relevant Associated Company; and
(b) with whom the Executive shall have had dealings in the course
of his employment under this Agreement;
"KEY PERSON"
means a person who was at any time during the period of 12 months immediately
prior to the Termination Date engaged or employed as an employee in a senior
position in receipt of remuneration of over (pound)25,000 per annum, director,
consultant (other than a professional adviser) or agent of the Company or any
Associated Company and who was a person with whom the Executive personally dealt
during his employment by the Company;
"LICENCEE"
means any Person:-
(a) with or whom the Company or any Relevant Associated Company
has entered into a licence agreement for:-
(i) the development and/or exploitation of a business or
businesses the same or similar to the Restricted
Business and/or;
(ii) the use and/or exploitation of the Intellectual
Property Rights owned by or used by the Company or
any Relevant Associated Company; and
(b) with whom the Executive shall have had dealings in the course
of his employment under this Agreement;
"MATERIALLY INTERESTED"
means employed or engaged by or concerned or interested in (whether directly or
indirectly) other than as a shareholder holding directly or indirectly by way of
bona fide investment only and subject to prior disclosure to the Company up to
3% in nominal value of the issue shares or other securities of any class of any
company listed or dealt in on any Recognised Investment Exchange;
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"ORIGINATE"
means (without prejudice to the generality of the word) originate, compose,
write, invent, create, generate, discover, design, develop or manufacture;
"PERSON"
means person, firm, company, association, corporation or other organisation or
entity;
"RECOGNISED INVESTMENT EXCHANGE"
means a body which is a recognised investment exchange for the purposes of the
Financial Services ▇▇▇ ▇▇▇▇;
"RELEVANT ASSOCIATED COMPANY"
means any Associated Company to which the Executive has rendered services both
in the period of 12 months immediately prior to the Termination Date and in the
course of his employment by the Company;
"RELEVANT INTELLECTUAL PROPERTY"
means Intellectual Property Originated by the Executive during the term of his
employment by the Company (whether in the course of his employment or otherwise
and whether alone or in conjunction with another Person or other Persons) but
excluding any Intellectual Property Originated by the Executive during the term
of his employment but outside the course of his employment where such work
either:-
(a) does not directly or indirectly relate to the business of the
Company or any Associated Company; or
(b) could not be used by or from which no benefit could be
acquired by the Company or any Associated Company in the
course of its or their business.
"RESTRICTED AREA"
means the United Kingdom and any other geographical area in which the Company or
any Relevant Associated Company provides goods and/or services and in the supply
of which the Executive has had material involvement;
"RESTRICTED BUSINESS"
means the business of the Company or any Relevant Associated Company within a
period of 12 months prior to the Termination Date;
"RESTRICTED GOODS AND/OR SERVICES"
means goods and/or services of a type or which compete with those:-
(a) provided by the Company or any Relevant Associated Company in
the ordinary course of its or their business during the period
of 12 months immediately prior to the Termination Date; and
(b) in the provision of which the Executive was concerned or
engaged during his employment by the Company;
"TERMINATION DATE"
means the date of the termination of the Executive's employment with the
Company.
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EXECUTED and DELIVERED as a Deed by the Company in the presence of:
P ▇▇▇▇▇▇▇▇ Director
Director/Secretary
SIGNED and DELIVERED as a Deed by the Executive in the presence of:
Simon Witney
▇▇▇ ▇▇▇▇'▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇
Solicitor