EXHIBIT 4.3
2000
SCOTTISH POWER plc
▇▇▇▇▇ ▇▇▇▇
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CONTRACT OF SERVICE
as
FINANCE DIRECTOR
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[LOGO OF FRESHFIELDS BRUCKHAUS ▇▇▇▇▇▇▇▇]
CONTRACT OF SERVICE entered into 2000
BETWEEN
(1) SCOTTISH POWER plc, incorporated under the Companies ▇▇▇ ▇▇▇▇ with number
SC193794 and having its Registered Office at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
(the Company);
(2) ▇▇▇▇▇ ▇▇▇▇ of Kinnoul, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the Officer)
WHEREBY IT IS AGREED as follows:
1. Definition and interpretation
(a) In this Contract, unless the context otherwise requires, words importing
the singular only shall include the plural and vice versa, words importing
natural persons shall include corporations and the following expressions shall
have the following meanings:
(i) the Board shall mean the Board of Directors of the Company;
(ii) the Employment shall mean the employment of the Officer under this
Contract;
(iii) the Group shall mean the Company and all of its Subsidiaries and
Subsidiary Undertakings;
(iv) Scottish Power UK shall mean Scottish Power UK plc, incorporated under
the Companies ▇▇▇ ▇▇▇▇ with number SC 117120 and having its Registered Office at
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇;
(v) Subsidiary shall mean a company which is a subsidiary (as that term is
defined by Section 736 of the Companies ▇▇▇ ▇▇▇▇ as amended from time to time)
of the Company;
(vi) Subsidiary Undertaking shall mean any undertaking which is a subsidiary
undertaking (as that term is defined by Section 258 of the Companies ▇▇▇ ▇▇▇▇ as
amended by Section 21 of the Companies ▇▇▇ ▇▇▇▇ and as amended from time to time
hereafter) of the Company; and
(vii) undertaking shall mean any undertaking (as that term is defined in
Section 259(1) of the Companies ▇▇▇ ▇▇▇▇ as amended by Section 22 of the
Companies ▇▇▇ ▇▇▇▇ and as amended from time to time hereafter).
(b) The index and headings do not form part of this Contract and are for
reference only.
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2. The employment
(a) Subject to the provisions of this Contract, the Company employs and
appoints the Officer and the Officer accepts employment and appointment as
Finance Director. Subject to the provisions of Clause 4 of this Contract, the
Officer shall be based, and his duties shall primarily be carried out, in
Scotland.
(b) The Officer may be required to act as a director (either executive or non-
executive) of any Subsidiary or Subsidiary Undertaking as the Board may from
time to time reasonably require and intimate to the Officer in writing in
addition to the appointment specified in Clause 2(a) under reservation to the
Company of the right at any time and from time to time on giving notice in
writing to the Officer to cancel such engagement in respect of such one or more
of such other companies as shall be specified in such notice and from such date
as may be stated therein, which notice shall take effect always subject to all
commitments and obligations in respect of such engagements.
3. Duration of the employment
(a) The Employment shall commence on and with effect from 13 December 1999 and
shall continue thereafter unless and until terminated by either party giving to
the other written notice of not less than 12 months. For the avoidance of doubt
and notwithstanding the foregoing provisions of this Clause it is expressly
agreed between the parties hereto that the Employment shall terminate without
notice on the retirement date specified in Clause 9(b) below unless otherwise
agreed with the Board.
(b) The Officer's period of continuous employment for the purposes of the
Employment Rights ▇▇▇ ▇▇▇▇ commenced on 15 September 1997.
(c) The Company shall be entitled at its sole discretion to make a payment to
the Officer in lieu of notice. The Company shall be entitled to make such
deductions from such payment as is required or permitted by law in respect of
income tax and national insurance contributions.
4. Duties of the officer
During the Employment the Officer shall:
(a) undertake and carry out to the best of his ability such duties and exercise
such powers in relation to the Group's respective businesses as may from time to
time be assigned to or vested in him by the Board;
(b) in the discharge of such duties and in the exercise of such powers observe,
obey and comply with all lawful resolutions, regulations and directions from
time to time made or given by or under the authority of the Board and promptly,
whenever required so to do, give a full account to the Board or a person duly
authorised by the Board of all matters with which he is entrusted;
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(c) (unless prevented by ill-health, accident, holidays or other unavoidable
cause) devote the whole of his time, attention and skill to the discharge of his
duties hereunder;
(d) whenever so required for the proper fulfilment of his duties, work without
additional remuneration in excess of the normal hours of work of the Company
which are 37 hours per week;
(e) carry out his duties in a proper and efficient manner, faithfully and
diligently serve the Company and at all times use his best endeavours to promote
the interests of the Group;
(f) visit any premises of the Group wheresoever situated and travel within the
United Kingdom and abroad as may reasonably be required for the proper
fulfilment of his duties; and
(g) in pursuance of his duties hereunder perform such services for and accept
such office in any Subsidiary or Subsidiary Undertaking as the Board may from
time to time reasonably require in accordance with Clause 2(b) hereof.
5. Remuneration
(a) The Company shall pay to the Officer as remuneration for his services
during the Employment a salary at such rate, being not less than (Pounds)250,000
per annum, as may from time to time be determined by the Board with effect from
1 October 2000. The said salary (which shall be exclusive of any bonus due in
terms of the incentive bonus schemes hereinafter referred to) shall accrue from
day to day and be payable by equal monthly instalments in arrears. The said
salary shall be inclusive of all Directors' fees (if any) to which the Officer
may be entitled as a director of the Company and all remuneration which may
become payable to the Officer by or in respect of services rendered by him to
any Subsidiary or Subsidiary Undertaking.
(b) The rate of such salary shall be reviewed annually with effect from 1 April
2001 and annually thereafter or upon such other date as may be agreed between
the parties during the continuance of the Employment. The revised rate of salary
shall be fixed by the Board but shall not be less than the rate of salary
applying immediately prior to the date of review.
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6. Expenses
The Company shall reimburse to the Officer (against receipts or other
appropriate evidence) the amount of all out-of-pocket expenses reasonably and
properly incurred by him on its behalf in connection with the discharge of his
duties under this Contract (including, without prejudice to the generality, the
cost of subscriptions to any professional bodies to which, for the purpose of
the Employment, the Officer is obliged, or which the Board considers it is
desirable for him, to belong in order to maintain his professional
qualifications).
7. Bonus schemes
The Company has established incentive bonus schemes and, subject to the rules of
such schemes, the Officer shall be eligible to participate in those schemes. The
Company reserves the right to amend the terms of or to terminate such schemes
and to alter the level of the Officer's participation therein without reference
to or agreement from him.
8. Motor car
The Company shall provide or procure the provision to the Officer during the
Employment and for the purposes thereof with a motor car deemed by the Company
to be appropriate to the status of the Employment and shall be responsible for
payment of the whole expenses of maintaining and running such motor car
including insurance, petrol and maintenance. The Officer shall be entitled to
make reasonable use of the said motor car for private purposes but shall not
take, or allow to be taken, the said motor car outside the United Kingdom
without the prior written consent of the Company.
9. Pension scheme
(a) The Officer may join any appropriate pension scheme established by the
Company and Scottish Power UK (the Scheme) subject to and in accordance with the
rules of the Scheme for the time being and from time to time in force.
(b) Without prejudice to any provisions of the Scheme the Officer's retirement
date under this Contract shall be 4 May 2023 (at age 63).
(c) If either:
(i) the Officer does not join the Scheme as soon as reasonably practicable and,
in any event, within three months of the date of commencement of this Contract,
or such longer period as the Scheme may permit;
or
(ii) within three months of the date of commencement of this Contract the
Officer takes out a personal pension scheme approved under Section 631 of the
Income and Corporation Taxes ▇▇▇ ▇▇▇▇,
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or
(iii) once having joined the Scheme the Officer ceases to be a member thereof
while remaining in the Employment at any age under the normal retirement date
referred to in Clause 9(b).
then the Company shall not (subject, in respect of sub-paragraph (iii) above, to
the Scheme trustees securing, to the extent required by law and the Scheme
rules, any accrued benefits outside the Scheme) be obliged to maintain the
Scheme or any other pension scheme for the benefit of the Officer and if the
Company does maintain the Scheme or brings into effect another pension scheme it
shall be within the discretion of the Company and the trustees of the Scheme or
other scheme as to whether or not, and if so upon what terms, the Officer shall
be permitted to become a member.
(d) For so long as the Officer shall remain a member of the Scheme he shall be
liable to make such contributions thereto and be entitled to such benefits
therefrom and be subject to such terms and conditions as are set out in the
rules from time to time governing the Scheme.
(e) The Company has elected to contract out of the State Earnings Related
Pension Scheme and a contracting-out certificate issued in accordance with the
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ is in force in respect of the Employment, provided the
Officer becomes and remains a member of the Scheme.
10. Health insurance
The Officer shall become, and for as long as he is employed by the Company,
remain a member of the Group's private health insurance scheme particulars of
which have been given to the Officer. The benefit of membership shall extend to
the spouse and children (in accordance with the terms of the scheme) of the
Officer.
11. Share option schemes
The Company has established share option schemes and, subject to the rules of
such schemes, the Officer shall be eligible to participate in these schemes. The
Officer hereby agrees and accepts that the grant of any option or other right
pursuant to such schemes or the termination or variation of such schemes shall
not constitute or give rise to any claim or right of action against the Company
under this Contract in respect of such grant, termination or variation.
12. Absence
(a) In respect of any absence from the Employment due to sickness or injury
lasting more than 3 days but less than 8 days the Officer shall send to the
Board or to such person as it shall nominate a self certification form, in such
form as the Company may reasonably require. In respect of any absence exceeding
7 days, he shall send to the Board or to such person aforesaid a statement of
his disability signed by a medical practitioner covering such absence after the
seventh day.
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(b) Subject to the terms of sub-clause 12(c), during any period of absence from
work due to sickness or injury, provided the Officer complies with the terms of
sub-clause 12(a) above:
(i) the salary payable to the Officer under the terms of this Contract shall be
paid at the full basic rate for the first six months of continuous absence (or
such greater periods as the Board shall in its absolute discretion determine)
and in respect of the following six months continuous absence (or such greater
periods as the Board shall in its absolute discretion determine) the Officer
shall be paid at half the full basic rate or at such greater rate as the Board
shall, in its absolute discretion, determine. Thereafter no salary shall be
payable; and
(ii) all benefits enjoyed by the Officer during the Employment shall continue
for the aggregate twelve months of continuous absence, but shall thereafter
cease .
(c) The provisions of sub-clause 12(b) and the other provisions of this
Contract are subject to the following:
(i) the Board shall in its absolute discretion (but acting fairly and
reasonably) determine (1) if the Officer has been absent through sickness or
injury during any period of twelve months prior to a period of absence to which
sub-clause 12(b) relates, whether or not salary shall be paid pursuant to the
provisions of sub-clause 12(b) for a number of days equal to the days for which
salary was paid during sickness or injury during the relevant twelve months
period; (2) if the Officer is absent through sickness or injury for a period of
more than twelve months (or such greater period or periods as the Board may
determine pursuant to sub-clause (b) above), whether or not any salary shall be
paid for any period greater than the initial twelve months absence; and (3) if
the Officer is absent through a reason other than sickness or injury, whether or
not any salary shall be paid during such absence; and
(ii) if the sickness or injury shall be or appear to be occasioned by actionable
negligence of a third party in respect of which damages are or may be
recoverable any salary paid to the Officer during his period of absence shall be
repayable in the event of, and out of, the receipt of the proceeds of any claim
against the third party; the Officer shall immediately notify the Company of the
reason for the sickness or injury and of any claim, compromise, settlement or
judgment made or awarded in connection with it and shall give to the Company all
particulars the Company may reasonably require and shall repay to it that part
of any damages or compensation recovered relating to loss of earnings for the
period of absence as shall equal the amount of salary paid to the Officer during
the period of absence provided that the amount to be refunded shall not exceed
the amount of damages or compensation recovered less any costs incurred by the
Officer in connection with the recovery of such damages or compensation and
shall not exceed the total remuneration paid to the Officer by way of salary in
respect of the period of absence.
(d) The foregoing provisions of sub-clauses 12(a) to (c) are without prejudice
to the Officer's entitlement to Statutory Sick Pay (SSP) in accordance with the
Social Security Contributions and Benefits ▇▇▇ ▇▇▇▇ provided that any payment
made under this Contract in respect of a day of sickness will count towards the
Officer's SSP payment for that day and any sickness or other benefits obtained
by the Officer under
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any social security, national insurance or other legislation from time to time
in force or any benefit received by him from any insurance policy effected by
the Company for his benefit in the event of incapacity in respect of a day of
sickness will count towards the payment to be made under this Contract in
respect of that day. Monday to Friday (inclusive) in each week shall be
Qualifying Days for the purposes of the said Act.
(e) The Officer shall submit to such medical examinations as may reasonably be
required by the Board from time to time by a medical practitioner selected by
the Board. The Officer hereby authorises and gives consent to, for the purposes
of Section 3 of the Access to Medical Reports ▇▇▇ ▇▇▇▇, the medical practitioner
to disclose the results of such examination to the Board and his own medical
practitioner to disclose to the Board such relevant medical information as the
Board may reasonably require provided that the Officer is given prior notice of
such request being made. Copies of any reports made and information provided to
the Board by such medical practitioners shall be made available to the Officer.
The fees and expenses incurred in the provision of such medical examination and
obtaining of such medical information shall be borne by the Company.
13. Holidays
(a) The Officer shall be entitled, in addition to all statutory and public
holidays, to thirty (30) days holidays in each calendar year at such time or
times as may from time to time be agreed between the Board and the Officer.
(b) Such holiday entitlement shall be deemed to accrue from day to day and may
not be carried over from one calendar year to the next unless the Board shall,
in its absolute discretion, otherwise determine. The Officer shall not be
entitled to receive holiday pay in respect of any holidays accrued but not taken
by him save on the termination of the Employment (other than termination
pursuant to Clause 19) when he shall be entitled to receive holiday pay in
respect of holidays accrued in the calendar year in which the Employment
terminates but not taken at the date of such termination.
14. Other interests
(a) The Officer shall disclose to the Board any interest of his own (or that of
his spouse or of any child of him or his spouse under eighteen years of age in
so far as he is able to do so) (1) in any trade, business or occupation
whatsoever which is in any way similar to any of those in which the Group or any
member thereof is involved and (2) in any trade or business carried on by any
supplier or customer of the Group or any member thereof whether or not such
trade, business or occupation may be conducted for profit or gain.
(b) During the Employment the Officer shall not at any time, without the prior
consent of the Board, either solely or jointly or in partnership or association
with or as director, manager, consultant, agent, employee, servant or
representative of or for any other person, firm, company or other undertaking
directly or indirectly carry on or be engaged or concerned or interested in any
business other than the business or businesses carried on within the Group or be
engaged or concerned or interested in
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any way in any company, firm or other undertaking provided that nothing
contained in this Clause shall preclude the Officer from holding any shares,
securities, or loan capital (not exceeding three per centum of the shares or
loan capital of the class concerned for the time being issued) in any company
whose shares are listed or dealt in on a recognised Stock Exchange (provided
always that if such company is a direct business competitor of the Group or any
member thereof the Officer shall obtain the prior consent of the Board to the
acquisition or variation of such holding).
15. Confidentiality
During the Employment and after the termination thereof (howsoever arising) the
Officer shall not, except in the performance of his duties hereunder or unless
ordered to do so by a court of competent jurisdiction, use for his own or
another's advantage or divulge to any person, firm, company or organisation and
shall use his best endeavours to prevent the publication or disclosure of any
information which the Officer knows or ought reasonably to have known to be of a
confidential nature concerning the business, transactions, secrets or affairs of
the Group or any member thereof or any of its or their customers.
16. Intellectual property rights
(a) For the purpose of the interpretation of this Clause 16 the following
expressions shall have the following meanings:
Intellectual Property Materials shall mean inventions, discoveries, processes,
copyright works, designs, semi-conductor chip topography, drawings, computer
programs and codes, engineering and other forms of data, feasibility studies,
specifications, plans and all other technical and other information, texts,
records, operating and testing procedures, instruction manuals, bills of
materials, formulae, tables of operating conditions and management,
administrative and financial materials and systems, in respect of which, in all
cases, Intellectual Property Rights subsist (or are capable of subsisting
subject to the making of the appropriate application or registration) and all
other similar or analogous items;
Intellectual Property Rights shall mean patents, applications for patents, trade
marks or trading names (whether or not registered), know-how, United Kingdom and
foreign designs (registered or unregistered and including applications for
registered designs), copyrights (including rights in computer software),
topography rights and other rights in semi-conductor chips, moral rights and all
rights having equivalent or similar effect wheresoever situated.
(b) All Intellectual Property Materials made, created, discovered, conceived,
written, designed or originated by the Officer, whether alone or in conjunction
with any other person, in the course of the Employment and in connection with or
in any way affecting or relating to the business of the Company or any other
undertaking within the Group or in any way, directly or indirectly, capable of
being used or modified for use therein or in connection therewith shall be
disclosed forthwith to the Company (together, where relevant, with all
information and data in his possession as to the exact mode of working,
producing and using the same) and such Intellectual Property Materials, and all
Intellectual Property Rights relative thereto, upon their
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creation, discovery, conception, drafting, design or origination belong to and
vest in the Company absolutely and beneficially together with all rights to
apply for the Intellectual Property Rights where necessary.
(c) The Officer shall if and when required to do so by the Company at the
Company's expense do all things necessary to vest all such Intellectual Property
Rights absolutely in the Company or its nominees as legal and beneficial owner
and to secure, preserve and enforce all appropriate forms of protection therefor
in any part of the world. For the purpose of this sub-clause 16(c) the Officer
hereby irrevocably appoints the Company or its nominee to be his attorney to
execute and do in his name, or in the name of the Company all documents, acts or
things as the Officer has agreed to execute and do.
17. Grievances and discipline
(a) If the Officer wishes to obtain redress of any grievance relating to his
employment he should apply in writing to the Chairman of the Board setting out
the nature and details of any such grievance. If the matter is not then resolved
the Officer shall present his grievance to the full Board in writing who will
grant the Officer the opportunity of a hearing within a reasonable time. The
decision of the Board on such grievance shall be final and binding on the
Officer and the Company. Likewise, if the Board, Chairman or Chief Executive
shall be dissatisfied with the conduct of the Officer and such conduct is not
such as to entitle the Company to apply the provisions of Clause 19 hereof,
written details of such dissatisfaction shall be given to the Officer and the
provisions of this clause shall apply mutatis mutandis.
(b) The Officer shall be notified by the Board of any disciplinary rules and
code of conduct of the Company applicable to the Officer.
18. Share dealings
During the Employment and for so long as the ordinary shares, or any of them, in
the capital of the Company are listed on the Official List of the London Stock
Exchange, the Officer shall (and shall procure, so far as he is able to do so,
that any person with whom he is connected, as that term is defined in Section
346 of the Companies Act 1985) comply with the rules adopted by the Company
governing dealings by directors in the shares of the Company.
19. Termination and suspension
(a) Notwithstanding the provisions of Clause 3 hereof the Company shall be
entitled, but not bound, to terminate with immediate effect, or on the expiry of
such period of notice as the Company may consider appropriate, the Employment by
giving to the Officer notice in writing to that effect at any time after the
happening of any one or more of the following events, namely:
(i) if the Officer commits any serious breach of this Contract, or (through his
own fault, and having received notification from the Board requiring the same to
be remedied) commits a persistent breach of this contract, whether serious or
not;
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(ii) if he resigns as a director of any Subsidiary or of any Subsidiary
Undertaking without the consent of the Board (which consent shall not be
unreasonably withheld);
(iii) if he becomes prohibited by law from being a director of a company or if
he is convicted of any criminal offence; or
(iv) if he becomes insolvent or bankrupt or compounds with or grants a trust
deed for the benefit of his creditors;
(v) if he is prevented by reason of sickness or injury or (in the opinion of
the Board acting fairly and reasonably) some other reason beyond his control
from attending to his duties for such period or aggregate periods as the Board
determines to be appropriate;
(vi) if he becomes of unsound mind;
(vii) if he commits any gross default or misconduct or if his behaviour is
such as may reasonably be regarded as materially prejudicial to the interests of
the Group or any member thereof; or
(viii) if (through his own fault, and having received notification from the
Board requiring the same to be remedied) he fails to perform his duties to the
standard considered by the Board to be required;
provided that where it is intended by the Company to take action under
paragraphs (v) - (viii) above, the Company shall first notify details of the
circumstances in writing to the Officer and the Officer shall be afforded an
opportunity (upon reasonable notice, having regard to the circumstances) to make
any representation to the Board. The decision of the Board in relation to all
such matters shall be final and binding on the Officer and the Company.
(b) If the Officer resigns as a director of the Company, the Company shall,
in its absolute discretion, either:
(i) deem the Officer to have given notice of termination of the Employment
in accordance with Clause 3(a) hereof as at the date of his resignation as a
director (the Officer hereby agreeing to serve the Company as a senior executive
rather than Finance Director during his notice period) and the Employment shall
terminate twelve months after that date; or
(ii) agree that the Employment should continue, which agreement may be
subject to such terms and conditions as the Company may determine (the Officer
hereby agreeing to serve the Company as a senior executive rather than Finance
Director during the continuance of the contract); or
(iii) terminate this Contract with immediate effect without compensation for
loss of office or otherwise.
(c) In the event of the Employment being terminated in accordance with
Clause 19(a) or 19(b) above, such termination shall not constitute breach of
this Contract and,
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for the avoidance of doubt, such termination shall be without prejudice to the
continuing obligations of the Officer under this Contract.
(d) The Board shall be entitled at any time to require the Officer not to
attend at any place of work or otherwise suspend the Officer from the
performance of his duties under this Contract whether in respect of the Company
or any other member of the Group including at any time when notice of
termination (1) has been given by either the Company or the Officer in terms of
Clause 3(a) hereof or (2) is deemed to have been given by the Officer in terms
of Clause 19(b) hereof.
20. Events upon termination
(a) Upon the termination of the Employment in terms of Clause 3, Clause 19 or
otherwise, the Officer shall (1) deliver forthwith to the Company all
Intellectual Property Materials and all other materials and property including
letters, documents, files, films, records, reports, plans and papers and all
copies thereof used in or relating to the business of any member of the Group as
are in the possession of or under the control of the Officer and (2) return
forthwith to the Company any motor car provided by the Company to the Officer in
terms of Clause 8 above together with all keys thereto and all documentation
relevant thereto.
(b) Upon the termination of the Employment in terms of Clause 3, Clause 19 or
otherwise or if the Officer shall cease for any reason to be a director of the
Company the Officer shall upon the request of the Board at any time or from time
to time thereafter tender his written resignation without claim for compensation
from office as a director of the Company and all offices held by him in the
Group or otherwise by virtue of his employment under this Contract and should he
fail to do so the Company is hereby irrevocably authorised to appoint some
person in his name and on his behalf to sign any documents or do all things
necessary or requisite to give effect thereto.
21. Restrictions after termination
(a) In this Clause 21 the following expressions shall have the following
meanings:
Confidential Information shall mean trade secrets and confidential information
which are for the time being confidential to the Company or any other member of
the Group;
Prohibited Area means Scotland, England, Wales, Northern Ireland and the Isle of
Man;
Relevant Group Member means any member of the Group (excluding the Company but
including any predecessor of a member of the Group) in respect of whose business
the Officer has been directly concerned pursuant to the provisions of this
Contract at any time during the period of 2 years prior to the Termination Date;
Restricted Period means the period of 12 months commencing with the Termination
Date;
Termination Date means the date on which the Employment shall terminate.
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(b) Since the Officer is likely to obtain in the course of his duties under
this Contract Confidential Information and personal knowledge of and influence
over suppliers, customers and employees of members of the Group the Officer
hereby agrees with the Company that in addition to the other terms of this
Contract and without prejudice to other restrictions imposed upon him by law, he
will be bound by the covenants contained in sub-clauses 21(c) to 21(j).
(c) The Officer hereby undertakes that he will not, unless with the prior
written consent of the Company, during the Restricted Period and within the
Prohibited Area on his own behalf or for any other person, firm, company or
other undertaking (whether as employee, consultant adviser, director, agent or
otherwise) directly or indirectly be engaged in or concerned with any trade or
business which competes with any trade or business carried on at the Termination
Date by the Company or any other Relevant Group Member :
(i) where such trade or business is conducted by either a holder of a Composite
Licence or a Generation Licence or a Transmission Licence or a Public
Electricity Supply Licence or a Private Electricity ("Second Tier") Supply
Licence granted under the Electricity Act 1989); or
(ii) where such trade or business involves any other activity conducted by the
Company or any Relevant Group Member,
and in which trade or business the Officer has been involved in or concerned
with as part of the Employment.
provided that the provisions of this sub-clause 21(c) shall not restrict the
Officer (including his spouse and children of him or his spouse under eighteen
years of age) from holding or acquiring by way of bona fide investment only
investments whether or not listed or quoted representing not more than three per
cent of the issued investments of any class of any one company and shall not
restrict any activity the performance of which could not involve the Officer in
such competition.
(d) The Officer hereby undertakes that he will not during the Restricted Period
and within the Prohibited Area directly or indirectly canvass, deal, solicit or
interfere with or endeavour to canvass, deal, solicit or interfere with, either
on his own behalf or for any other person, firm, company or other undertaking in
competition with the Company or any Relevant Group Member the custom of any
person, firm, company or other undertaking who at any time during the last
twenty-four (24) months of his service with the Company was a customer of, or in
the habit of dealing with, the Company or (as the case may be) any Relevant
Group Member and with whom the Officer shall have been personally concerned or
have had personal knowledge as part of the Employment so as to harm the goodwill
of the Company or any Relevant Group Member or so as to compete with the Company
or any Relevant Group Member.
(e) The Officer hereby undertakes that he will not during the Restricted Period
and within the Prohibited Area either on his own behalf or for any other person,
firm, company or other undertaking directly or indirectly solicit or entice or
endeavour to solicit or entice away from the Company or any Relevant Group
Member any person
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who is to his knowledge a senior employee, director, officer, agent, consultant
or associate of such company at the Termination Date and at any time within a
period of six months prior to that date and with whom the Officer has worked or
with whom he has had personal contact as part of the Employment.
(f) The Officer hereby undertakes that he shall not following the Termination
Date represent himself as being in any way connected with the business of the
Company or that of any Relevant Group Member (except to the extent agreed by the
Company or, as the case may be, such Relevant Group Member).
(g) The Officer agrees that each of the provisions contained in sub-clauses
21(c) to 21(f) constitute an entirely separate and independent covenant on his
part and the validity of one sub-clause shall not be affected by the validity or
unenforceability of another.
(h) The Officer agrees that he will at the request and cost of the Company
enter into a direct agreement or undertaking with any Relevant Group Member
whereby he will accept restrictions and provisions corresponding to the
restrictions and provisions above (or such of them as may be reasonable and
appropriate in the circumstances) in relation to such activities and such areas
and for such a period as such Relevant Group Member may reasonably require for
the protection of its legitimate interests.
(i) While the restrictions imposed in this Clause 21 are considered by the
parties to be reasonable in all the circumstances it is agreed that if any one
or more of such restrictions shall either taken by itself or themselves together
be adjudged by a court of competent jurisdiction to go beyond what is
enforceable in all the circumstances for the protection of the Company's or any
Relevant Group Member's legitimate interest but would be so judged enforceable
if any particular restriction or restrictions were deleted or if any part or
part of the wording thereof were deleted, then the said restrictions shall apply
with such deletions.
(j) The Officer agrees that having regard to the facts and matters set out
above the restrictive covenants contained in this Clause 21 are not only
reasonable but are also necessary for the protection of the business and
Confidential Information of the Company and Relevant Group Members and he
further agrees that having regard to those circumstances those covenants do not
work harshly upon him.
22. Enforceability
In the event of any Clause or part thereof contained in this Contract being
declared invalid or unenforceable by any court of competent jurisdiction all
other Clauses or parts thereof shall remain in full force and effect and shall
not be affected thereby.
23. Reconstructions and amalgamations
If the Company shall undergo any process of reconstruction or amalgamation
(whether or not involving the liquidation of the Company) and the Officer shall
be offered employment by the successor or proposed successor to the Company or
any other member of the Group on terms no less favourable overall to those under
this Contract whether as to duties, responsibilities, remuneration or otherwise
and the
Page 13
Officer does not accept such offer within one month, then the Company may
terminate this Contract forthwith and, in such event, the Officer shall have no
claim for compensation against the Company in respect of such termination (save
as provided under the provisions of the Employment Rights Act 1996).
24. Notices
Any notice hereunder shall be given by either party to the other by personal
delivery or by recorded delivery first class mail at, in the case of the
Company, its registered office for the time being and, in the case of the
Officer, his address last known to the Company. Any such notice shall in the
case of personal delivery be deemed to have been served at the time of delivery
and in the case of posting at the expiration of 48 hours after it has been
placed in the post and in proving such service by post it shall be sufficient to
prove that the envelope containing the same was properly addressed and mailed as
a pre-paid recorded delivery first class letter.
25. Assignation
This Contract shall not be assignable by the Company or the Officer.
26. Entire agreement
This Contract takes effect in substitution for all previous agreements and
arrangements (whether written, oral or implied) between the Company and the
Officer relating to his employment. Any such previous agreements shall be deemed
to have been terminated by mutual consent and without liability to either party
as from the date of commencement of the Employment. The preceding provisions of
this Clause shall not apply in respect of any retirement benefits as may have
been provided to or for the Officer and/or his dependants, all of which shall be
reserved to him and/or them.
27. Continuing effect
The expiration or determination of the Employment, howsoever arising, shall not
operate to affect such of the provisions of the Contract as in accordance with
their terms are expressed to operate or have effect thereafter.
28. Waiver
No waiver of any terms or conditions of this Contract shall be effective unless
made in writing and signed by the party against which enforcement of the waiver
is sought. A waiver of any breach of any terms or conditions of this Contract
shall not be construed as a waiver of any subsequent breach of condition whether
of the same or different nature.
29. Governing law
This Contract shall be interpreted and receive effect in accordance with the law
of Scotland.
In witness whereof these presents consisting of this and the preceding sixteen
pages are executed as follows:
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SUBSCRIBED for and on behalf of )
SCOTTISH POWER plc )
at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ )
on the _____ day of _____ )
Two Thousand by )
and ) ..............................
) ..............................
being respectively a Director and the )
Secretary duly authorised to )
subscribe this document on behalf of )
SCOTTISH POWER plc )
SIGNED by the said )
▇▇▇▇▇ ▇▇▇▇ )
at _____ _____ _____ )
on the _____ day of _____ )
Two Thousand in the presence of )
Witness ..............................
Address ..............................
..............................
..............................
Occupation .......................
Witness ..........................
Address ..........................
..........................
..........................
Occupation.......................