EXHIBIT 10.0
EMPLOYMENT AGREEMENT
THIS AGREEMENT, made and entered into as of May 1, 2002 (the "Effective
Date"), by and between ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ (the "Executive") and Omega Worldwide,
Inc. (the "Company");
WITNESSETH THAT:
WHEREAS, beginning January 2, 2002, the Executive provided services to
the Company as a consultant, and the parties have agreed that the Executive's
relationship and responsibilities shall be modified as of the Employment
Commencement Date, as reflected in this Agreement, pertaining to the employment
of the Executive by the Company;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth below, it is hereby covenanted and agreed by the Executive and the
Company as follows:
1. Performance of Services. The Executive's employment with the Company
shall be subject to the following:
(a) Subject to the terms of this Agreement, the Company hereby agrees to
employ the Executive as its Chief Executive Officer during the
Agreement Term (as defined below), and the Executive hereby agrees to
remain in the employ of the Company during the Agreement Term. This
Agreement does not constitute a guarantee of continued employment but
instead provides for certain rights and benefits for the Executive
during his employment, and in the event his employment with the Company
terminates under the circumstances described herein.
(b) During the Agreement Term, while he is employed by the Company, the
Executive shall be a member of the Board of Directors of the Company
(the "Board") and of such Affiliates as the Board may require from time
to time. The Executive shall resign without claim for compensation from
office as a director of any such Affiliates (excluding the Company
prior to the Executive's Date of Termination) at any time on request by
the Company, which resignation shall not effect the continuance in any
way of this Agreement unless such request constitutes Constructive
Discharge pursuant to paragraph 3(d).
(c) During the Agreement Term, while the Executive is employed by the
Company, the Executive shall devote his full time, energies and talents
to serving as its Chief Executive Officer and use his reasonable
endeavors to promote and protect the interests of the Company and its
Affiliates. The Executive's principal place of work shall be the
offices of the Company in the London, England metropolitan area. The
Executive may be required to travel both inside and outside the UK on
the business of the Company or the Affiliates.
(d) The Executive agrees that he shall perform his duties faithfully and
efficiently and in accordance with the directions of the Board. The
Executive's duties may include providing services for both the Company
and the Affiliates (as defined below), as
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determined by the Board; provided that the Executive shall not, without
his consent, be assigned tasks that would be inconsistent with those of
Chief Executive Officer. The Executive shall report to the Board and
shall have such authority, power, responsibilities and duties as are
assigned to him by the Board or are inherent in his positions (and the
undertakings applicable to his positions) and necessary to carry out
his responsibilities and the duties required of him hereunder.
(e) Notwithstanding the foregoing provisions of this paragraph 1, during
the Agreement Term, the Executive may devote reasonable time to
activities other than those required under this Agreement, including
the supervision of his personal investments, and activities involving
professional, charitable, community, educational, religious and similar
types of organizations, speaking engagements, membership on the boards
of directors of other organizations, and similar types of activities,
to the extent that such other activities do not, in the judgment of the
Board, inhibit or prohibit the performance of the Executive's duties
under this Agreement, or conflict in any material way with the business
of the Company or any Affiliate; provided, however, that the Executive
shall not serve on the board of any business, hold any other position
with any business, or otherwise engage in any business activity,
without the prior written consent of the Board.
(f) Subject to the terms of this Agreement, the Executive shall not be
required to perform services under this Agreement during any period
that he is Incapacitated. The Executive shall be considered
"Incapacitated" during any period in which he is prevented by ill
health or accident, after reasonable accommodation, from performing his
duties under this Agreement. In the event of a dispute as to whether
the Executive is Incapacitated or Permanently Incapacitated, the
Company may refer the same to a licensed practicing physician of the
Company's choice, and the Executive agrees to submit to such tests and
examinations as such physician shall deem appropriate. During the
period in which the Executive is Incapacitated, the Company may appoint
a temporary replacement to assume the Executive's responsibilities.
(g) The "Agreement Term" shall be the period beginning on February 10, 2002
(the "Employment Commencement Date") and ending on December 31, 2003.
Thereafter, as of the date the Agreement Term (as it may be extended
from time to time under this paragraph) would otherwise end, the
Agreement Term will be automatically extended for 12 months, unless one
party to this Agreement provides notice of non-renewal to the other at
least 90 days before the day that would be the last day of the
Agreement Term in the absence of such renewal.
(h) For purposes of this Agreement, the term "Affiliate" means a company
which is the Company's subsidiary, subsidiary undertaking or holding
company, or a company which is a subsidiary or subsidiary undertaking
of that holding company. In this Agreement, where the context admits,
words and phrases, the definitions of which are contained or referred
to in Part XXVI of the Companies ▇▇▇ ▇▇▇▇, shall be construed as having
the meanings so attributed to them.
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2. Compensation. Subject to the terms of this Agreement, during the
Agreement Term, while the Executive is employed by the Company, the Company
shall compensate him for his services as follows:
(a) Salary. The Executive shall receive, for the period beginning on the
Employment Commencement Date and ending on December 31, 2002, and for
each calendar year thereafter, in substantially equal monthly or more
frequent installments, a base salary at an annual rate of not less than
(pound) 300,000 (the "Salary") (less such deductions as the Company may
be obliged to deduct in respect of tax and national insurance
contributions) which shall be deemed to accrue from day to day. Such
salary shall include any director's fees payable to the Executive. The
Executive's Salary rate shall be reviewed upwards only by the Board in
December of each year during the Agreement Term and thereafter if the
Agreement Term is extended, while the Executive is employed by the
Company, to determine whether an increase in the amount of Salary is
appropriate. In no event shall the Salary of the Executive be reduced
to an amount that is less than the amount specified in this paragraph
(a), or to an amount that is less than the amount that he was
previously receiving, except to the extent that in exceptional
circumstances reductions of the same percentage are being made at the
same time to the salaries of all other Company officers in the
corporate office at or above the vice-president level, and such Salary
shall be restored to its prior level when, and to the same extent, as
the restoration that applies to the other officers.
(b) Initial Bonus. For the period ending June 30, 2002, the Executive may
be granted a bonus in such amount, if any, determined by the Board in
its absolute discretion, not to exceed (pound) 200,000, based on
accomplishment, with respect to the Company, of strategic initiatives,
development and employment of capital and resources, market valuation,
public image and recognition, as well as financial results and
projections in the following categories: earnings, revenue, operating
costs, and growth, and such other factors as the Board determines to be
pertinent. The Executive's rights in accordance with the foregoing
provisions of this paragraph (b) shall be subject to the following:
(i) The Executive shall be entitled to a bonus under the foregoing
provisions of this paragraph (b) of (pound) 100,000 if, while the
Executive is employed by the Company and prior to June 30, 2002, the
Company enters into a legally binding contract which provides for the
sale of substantially all of the stock of the Company or substantially
all of the assets of the Company to a party that is not an Affiliate.
To the extent this portion of the bonus has been earned in accordance
with the preceding sentence, it shall be paid not later than five
business days after the Company enters into a legally binding contract
that has been approved by the Board.
(ii) The Executive shall be entitled to the remaining (pound) 100,000
portion of the bonus under this paragraph (b) if the transaction
contemplated by the contract described in paragraph (i) above is
ultimately consummated either while the Executive is employed by the
Company or thereafter. Payment of this portion of the bonus shall be
made not later than five business days after the ultimate consummation
of the said contract.
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In no event, however, shall the Executive be entitled to an amount that
is greater than (pound) 200,000 under this paragraph (b).
(c) Annual Bonus. In addition to eligibility for the bonus described in
paragraph (b) above, the Executive shall participate in an annual bonus
program. The bonus program shall provide for a maximum bonus amount of
50% of the Executive's annual salary if the maximum goals for the
performance period are achieved, and shall provide for an annual bonus
amount of not less than 30% of the Executive's annual salary if the
target goals for the performance period are achieved. The amount of
bonus (if any) shall be determined by the Board in its absolute
discretion. The performance goals shall be established by the Board
after consultation with the Executive. The first performance period for
which the Executive shall be eligible for a bonus under this paragraph
(c) shall be calendar year 2002.
(d) Options. As soon as practicable after the full execution of this
Agreement, the Executive shall be granted a stock option covering
75,000 shares of Company stock, with an option exercise price equal to
the fair market value of the Company's stock on the grant date. It is
understood by the parties that shares of Company stock reserved under
the 1997 Stock Option and Restricted Stock Plan may not be sufficient
to permit the Company to fulfill the Company's obligation under the
foregoing provisions of this paragraph (d). If the Company is unable,
within a reasonable time, to make the grant required under the
foregoing provisions of this paragraph (d), the Company shall grant an
award (a stock appreciation right) to the Executive which shall provide
the value to the Executive that is equivalent to the value that would
otherwise be provided to the Executive by the Options required under
the foregoing provisions of this paragraph (d). If an equivalent award
is made in accordance with the preceding sentence, such award shall
provide the value that would have been provided under the Options if
the Options had been granted as of April 15, 2002. For years after
2002, the Executive shall be granted stock options at such times as
options are granted to the Company's other senior executives in the
corporate office at or above the vice-president level. Stock option
grants shall be subject to such terms, and shall cover a number of
shares, as are comparable to the terms of, and number of shares covered
by options granted to the Company's other senior executives in the
corporate office at or above the vice-president level from time to
time, with the number of shares to be adjusted in a manner that
reflects the Executive's position compared with others receiving option
grants.
(e) Expenses. The Executive is authorized to incur reasonable expenses for
entertainment, traveling, meals, lodging and similar items in promoting
the Company's business. The Company will reimburse the Executive for
all reasonable expenses so incurred, provided that such expenses are
incurred and accounted for in accordance with the reasonable policies
and procedures established by the Company.
(f) Automobile. The Company shall pay the Executive a car allowance
of (pound) 22,000 per year (less such deductions as the Company is
obliged to make in respect of tax and national insurance
contributions). The Executive shall be responsible for payment of all
insurance, maintenance, repair, fuel for personal use, and other costs
associated with the
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ownership and use of the automobile for both personal and business
purposes, without further reimbursement by the Company. The allowance
under this paragraph (f) shall be paid monthly in the same manner on
the salary referred to in paragraph 2(a). Notwithstanding the foregoing
provisions of this paragraph (e), the Executive shall also be
reimbursed for his actual automobile fuel costs incurred for business
purposes.
(g) Vacation. The Executive shall be eligible for 25 days paid vacation per
calendar year (in addition to public and bank holidays). In the absence
of the Board's agreement, holiday must be taken in the calendar year in
which it accrues. Upon the termination of the Executive's employment
under this Agreement, the Company shall be entitled to deduct from any
sum owed by the Company to the Executive a sum representing over
payment of salary in respect of holiday which the Executive has taken
in excess of his accrued holiday entitlement as at the date of the
termination of his employment and the Executive hereby authorises the
Company pursuant to the Employment Rights ▇▇▇ ▇▇▇▇ to make such
deduction. Upon the termination of this Agreement, the Executive shall
be entitled to a payment in lieu of any untaken outstanding holiday
entitlement in the calendar year during which his employment
terminates. For the purposes of calculation of holiday entitlement
under this paragraph (g), holiday entitlement shall be taken to accrue
at the rate of 2 days per completed month in a calendar year and
payments in lieu of or deductions in respect of holidays shall be
calculated as 1/365th of the Executive's salary for each day's holiday.
(h) Indemnification. If the Executive incurs liability by reason of actions
taken by him in good faith on behalf of the Company while he was
employed by the Company, or while acting as a director, he shall be
indemnified by the Company to the full extent of any liability to the
extent permitted by law.
(i) Other Fringe Benefits. Except as otherwise specifically provided to the
contrary in this Agreement, the Executive shall be provided with the
welfare benefits and other fringe benefits, including private medical
insurance, life assurance and permanent health insurance, to the same
extent and on the same terms as those benefits are provided by the
Company from time to time to the Company's other senior management
employees. The Executives' entitlement to such benefits shall be
subject to the rules of the relevant scheme(s) from time to time.
However, the Company shall not be required to provide a benefit under
this paragraph (i) if such benefit would duplicate (or otherwise be of
the same type as) a benefit specifically required to be provided under
another provision of this Agreement. The Executive shall complete all
forms and physical examinations, and otherwise take all other similar
actions to secure coverage and benefits described in this paragraph 2,
to the extent determined to be necessary or appropriate by the Company.
(j) Currency. Except as otherwise indicated in this Agreement, all
references in this Agreement to pounds (pound) refer to British pounds
sterling.
(k) Consulting Period. The parties to this Agreement agree that the
Executive has been fully compensated for the consulting services
rendered during the period beginning on January 2, 2002, and ending
immediately prior to the Employment Commencement Date, and the
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Executive is entitled to no further compensation for such period, save
that work carried out during this period will be considered by the
Board in determining the amount of bonus (if any) to be paid under
paragraph 2(c).
(l) Sick Pay. Subject to paragraph 2(m), when the Executive is absent from
work and unable to perform his duties under this Agreement
satisfactorily by reason of any injury, illness or other reason
satisfactory to the Company, he shall be entitled to receive his salary
and other benefits for up to 60 working days during any such absence in
any period of 12 consecutive months.
(m) Sick Pay Conditions. Once the Executive has been absent for a total of
60 working days in any period of 12 consecutive months, the Executive
shall have no entitlement to salary or any other benefits provided
under this Agreement until after the Executive has returned to work and
remained at work for 1 month. Once the Executive has exhausted his
entitlement to salary and other benefits under paragraph 2(l), the
Executive shall receive such benefits (if any) as are available to the
Executive under the provisions from time to time in force of any
permanent health insurance scheme of the Company or, if no such
benefits are available, he shall receive such sum or sums as the Board
may, in its absolute discretion, decide. Any salary payable pursuant to
paragraph 2(l) shall be adjusted by the amount of any benefit or
statutory sick pay to which the Executive may be entitled during the
period of such inability under any national insurance scheme or
statutory sick pay scheme for the time being in force.
(n) The Company will reimburse the Executive for the reasonable attorney
fees incurred in connection with the negotiation of this Agreement, not
to exceed (pound) 9,500 (plus VAT).
3. Termination. The Executive's employment with the Company during the
Agreement Term may be terminated by the Company or the Executive without any
breach of this Agreement only under the circumstances described in paragraphs
3(a) through 3(f):
(a) Death. The Executive's employment hereunder will terminate upon his
death.
(b) Permanent Disability. The Executive shall be considered "Permanently
Incapacitated" during any period in which he is considered to have a
"disability" under the long-term disability plan, policy, or
arrangement maintained by the Company for the Executive. The Company
may terminate the Executive's employment with immediate effect when the
Executive becomes entitled to receive payments pursuant to the
permanent health insurance policy referred to under paragraph 2(i) (or
other comparable plan or arrangement maintained for the benefit of the
Executive).
(c) Cause. The Company may terminate the Executive's employment hereunder
at any time for Cause. For purposes of this Agreement, the term "Cause"
shall mean:
(i) the continued failure by the Executive to substantially perform his
duties with the Company (other than any such failure resulting from the
Executive's being Incapacitated), within a reasonable period of time
after a written demand for substantial
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performance is delivered to the Executive by the Board, which demand
specifically identifies the manner in which the Board believes that the
Executive has not substantially performed his duties;
(ii) the commission by the Executive of any serious or repeated or
continual breach of any of his obligations under this Agreement;
(iii) the engaging by the Executive in conduct which is materially
prejudicial to the Company or the Affiliates, monetarily or otherwise;
or
(iv) the engaging by the Executive in serious misconduct or the
conviction of the Executive of any criminal offence to the extent that,
in the reasonable judgment of the Company's Board, the Executive's
credibility and reputation no longer conform to the standard of the
Company's executives;
(v) the making of a bankruptcy order against the Executive or if he
makes any arrangement or composition with his creditors or has an
interim order made against him pursuant to section 252 of the
Insolvency ▇▇▇ ▇▇▇▇;
(vi) the Executive becoming of unsound mind or a patient for the
purpose of any statute relating to mental health;
(vii) the conviction of the Executive of any offence under any present
or future statutory enactment or regulation relating to insider
dealings; or
(viii) the Executive becoming prohibited by law from being a director.
(d) Constructive Discharge. Prior to the Executive making a claim for
constructive discharge against the Company, he shall give the Company
such reasonable time as is in the circumstances appropriate by way of
written notice to remedy any complaint he may have. Should the Company
fail to address his complaints or address them inadequately, then the
Executive may in such circumstances resign without notice. Events
giving rise to a claim for constructive discharge shall be the
occurrence of any of the following circumstances.
(i) the failure of the Board to re-elect the Executive to the position
of Chief Executive Officer or a failure to re-elect the Executive to
the Board (provided that a failure to be reelected to the Board shall
not be a basis for Constructive Discharge if, as soon as reasonably
practicable, but in no event more than 30 days, after the failure of
such reelection, the Executive is reelected or appointed to the Board);
(ii) the assignment to the Executive of duties or work responsibilities
which are inconsistent with his title, position, authority or
responsibility;
(iii) a change in the Executive's reporting relationship so that he no
longer reports directly to the Board;
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(iv) the relocation of the Company's headquarters or the primary place
at which the Executive is to perform his duties to a location more than
fifty (50) miles from the location at which the Executive previously
performed his duties;
(v) the occurrence of a complete liquidation or dissolution of the
Company; or
(vi) any other material breach of this Agreement by the Company
(e) Termination by Executive. The Executive may terminate his employment
hereunder at any time for any reason by giving the Company prior
written Notice of Termination (as defined in paragraph 3(g)), which
Notice of Termination shall be effective not less than 60 days after it
is given to the Company, provided that nothing in this Agreement shall
require the Executive to specify a reason for any such termination.
However, to the extent that the procedures specified in paragraph 3(d)
are required, the procedures of this paragraph 3(e) may not be used in
lieu of the procedures required under paragraph 3(d).
(f) Termination by Company. The Company may terminate the Executive's
employment hereunder at any time for any reason, by giving the
Executive prior written Notice of Termination, which Notice of
Termination shall be effective immediately, or such later time as is
specified in such notice. The Company shall not be required to specify
a reason for the termination under this paragraph 3(f), provided that
termination of the Executive's employment by the Company shall be
deemed to have occurred under this paragraph (f) only if it is not for
reasons described in paragraph 3(b), 3(c), 3(d), or 3(e).
Notwithstanding the foregoing provisions of this paragraph (f), if the
Executive's employment is terminated by the Company in accordance with
this paragraph (f), and within a reasonable time period thereafter, it
is determined by the Board that circumstances existed which would have
constituted a basis for termination of the Executive's employment for
Cause in accordance with paragraph 3(c) (disregarding circumstances
which could have been remedied if notice had been given in accordance
with paragraph 3(c)(i)), the Executive's employment will be deemed to
have been terminated for Cause in accordance with paragraph 3(c).
(g) Notice of Termination. Any termination of the Executive's employment by
the Company or the Executive (other than a termination pursuant to
paragraph 3(a)) must be communicated by a written Notice of Termination
to the other party hereto. For purposes of this Agreement, a "Notice of
Termination" means a dated notice which indicates the Date of
Termination (not earlier than the date on which the notice is
provided), and which indicates the specific termination provision in
this Agreement relied on and which sets forth in reasonable detail the
facts and circumstances, if any, claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated.
(h) Date of Termination. "Date of Termination" means the last day the
Executive is employed by the Company (including any successor to the
Company as determined in accordance with paragraph 18). If the
Executive becomes employed by the entity into which the Company is
merged, or the purchaser of substantially all of the assets of the
Company, or a successor to such entity or purchaser, the Executive
shall not be treated as
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having terminated employment for purposes of this Agreement until such
time as the Executive terminates employment with the successor
(including, without limitation, the merged entity or purchaser). If the
Executive is transferred to employment with the Company (including a
successor to the Company) or an Affiliate, such transfer shall not
constitute a termination of employment for purposes of this Agreement.
(i) Effect of Termination. If, on the Date of Termination, the Executive is
a member of the Board of Directors of the Company or any of the
Affiliates, or holds any other position with the Company and the
Affiliates, the Executive shall resign from all such positions as of
the Date of Termination. Should the Executive fail to resign from the
office as a director or from any other office in accordance with this
paragraph (i), the Company is hereby irrevocably authorised to appoint
a person in his name and on his behalf to execute any documents and to
do all things required to give effect to such resignation.
(j) Intervening Termination Event. If, prior to the scheduled date of the
Executive's termination of employment pursuant to the originally filed
Notice of Termination (the "Original Notice of Termination"), the
Executive's termination of employment occurs under circumstances
described in another provision of paragraph 3, then, for purposes of
this Agreement, the Date of Termination shall not be deemed to have
occurred by reason of Original Notice of Termination, but by reason of
the subsequent event resulting in employment termination.
4. Rights Upon Termination. The Executive's right to payment and
benefits under this Agreement for periods after his Date of Termination shall be
determined in accordance with the following provisions of this paragraph 4:
(a) General. If the Executive's Date of Termination occurs during the
Agreement Term for any reason, the Company shall pay to the Executive:
(i) The Executive's Salary for the period ending on the Date of
Termination.
(ii) Payment for unused vacation days, as determined in accordance with
Company policy as in effect from time to time.
(iii) If the Date of Termination occurs after the end of a performance
period and prior to payment of the bonus or bonuses (as described in
paragraph 2(b) and 2(c)) for the period, the Executive shall be paid
such bonus amount, if any, at the regularly scheduled time.
(iv) Any other payments or benefits to be provided to the Executive by
the Company pursuant to any employee benefit plans or arrangements
established or adopted by the Company (including, without limitation,
any rights to indemnification from the Company (or from a third-party
insurer for directors and officers liability coverage) with respect to
any costs, losses, claims, suits, proceedings, damages or liabilities
to which the Executive may become subject which arise out of, are based
upon or relate to the Executive's employment by the Company or the
Executive's service as an officer or member of the Board of Directors
of the Company), to the extent such amounts are due from the
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Company in accordance with the terms of such plans or arrangements and
accrued as at the Date of the Termination.
Except as may otherwise be expressly provided to the contrary in this
Agreement, the Company shall be under no obligation to continue this
Agreement and the Executive's employment hereunder so as not to
disentitle him from receiving any benefits under this Agreement and
nothing in this Agreement shall be construed as requiring the Executive
to be treated as employed by the Company for purposes of any employee
benefit plan or arrangement following the Executive's Date of
Termination.
(b) Resignation and Termination for Cause. If the Executive's Date of
Termination occurs during the Agreement Term under circumstances
described in paragraph 3(c) (relating to the Executive's termination
for Cause), then, except as otherwise expressly provided in this
Agreement or otherwise agreed in writing between the Executive and the
Company, the following paragraphs (I) and (II) shall apply in addition
to the amounts payable in accordance with paragraph 4(a):
(I) To the extent that a bonus amount is payable in accordance with
paragraph 2(b)(i) or 2(b)(ii), such payment shall be in the amounts and
at the times set forth in those paragraphs. Except to the extent that a
bonus is payable in accordance with paragraph 2(b)(i) or 2(b)(ii), no
bonus shall be paid in accordance with paragraph 2(b).
(II) The Executive shall not be entitled to the bonus amounts described
in paragraph 2(c) for the performance period in which the Date of
Termination occurs, or for subsequent performance periods.
If the Executive's Date of Termination occurs during the Agreement Term
under circumstances described in paragraph 3(e) (relating to the
Executive's resignation), then the following paragraphs (i) and (ii)
shall apply in addition to the amounts payable in accordance with
paragraph 4(a):
(i) The Executive shall be eligible to receive payment of a bonus under
paragraph 2(b) in accordance with such paragraph. To the extent that
such bonus amount is payable in accordance with paragraph 2(b)(i) or
2(b)(ii), such payment shall be in the amounts and at the times set
forth in those paragraphs. To the extent that such bonus is payable
under paragraph 2(b) other than in accordance with paragraph 2(b)(i) or
2(b)(ii), any such bonus shall be subject to a pro-rata reduction for
the portion of the performance period (January 1, 2002 through June 30,
2002) following the Date of Termination.
(ii) If the Executive's Date of Termination occurs after June 30, 2002,
the Executive shall be eligible to receive payment of the bonus under
paragraph 2(c) for the performance period in which his Date of
Termination occurs, based on actual performance for the entire period,
and payable at the same time as it is payable for other participants in
the bonus plan, subject to a pro-rata reduction for the portion of the
performance period following the Date of Termination. If the
Executive's Date of
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Termination occurs on or before June 30, 2002, the Executive shall not
be entitled to any bonus payments under paragraph 2(c).
If the Executive's Date of Termination occurs during the Agreement Term
under circumstances described in paragraph 3(c) (relating to the
Executive's termination for Cause), or paragraph 3(e) (relating to the
Executive's resignation), the Company shall have no other obligation to
make payments under the Agreement for periods after the Executive's
Date of Termination.
(c) Death or Incapacity. If the Executive's Date of Termination occurs
during the Agreement Term under circumstances described in paragraph
3(a) (relating to Executive's death), or paragraph 3(b) (relating to
Executive's being Permanently Incapacitated), then, in addition to the
amounts payable in accordance with paragraph 4(a):
(i) The Executive shall be eligible to receive payment of a bonus under
paragraph 2(b) in accordance with such paragraph. To the extent that
such amount is payable in accordance with paragraph 2(b)(i) or
2(b)(ii), such payment shall be in the amounts and at the times set
forth in those paragraphs. To the extent that such bonus is payable
under paragraph 2(b) other than in accordance with paragraph 2(b)(i) or
2(b)(ii), any such bonus shall be subject to a pro-rata reduction for
the portion of the performance period (January 1, 2002 through June 30,
2002) following the Date of Termination.
(ii) The Executive shall be eligible to receive payment of the bonus
under paragraph 2(c) for the performance period in which his Date of
Termination occurs, based on actual performance for the entire period,
and payable at the same time as it is payable for other participants in
the bonus plan and, if the Date of Termination occurs prior to June 30,
2002, the Executive shall be entitled to receive payment of the bonus
under paragraph 2(c), subject to a pro-rata reduction for the portion
of the performance period following the Date of Termination.
(d) Termination without Cause and Constructive Discharge. If:
(I) the Executive's Date of Termination occurs at any time during the
Agreement Term (whether before, on or after December 31, 2003) under
circumstances described in paragraph 3(d) (relating to Constructive
Discharge) or paragraph 3(f) (relating to termination by the Company
without Cause), or if;
(II) the Agreement Term is not extended by reason of the Company
providing notice to the Executive of non-renewal in accordance with
paragraph 1(g), at any time (whether before or after 31 December 2003)
and provided that the Executive is still employed by the Company as of
December 31, in the year in which the Company provides notice to the
Executive of non-renewal in accordance with paragraph 1(g);
then, in addition to the amounts payable in accordance with paragraph
4(a):
(i) The Executive shall receive from the Company for the period (the
"Severance Period") continuing through the first anniversary of the
Date of Termination, the Salary
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amount described in paragraph 2(a), as in effect on his Date of
Termination, in monthly or more frequent installments as is required
under that paragraph. The Severance Period, and the Company's
obligation to make payments under this paragraph (i) shall cease with
respect to periods after the earlier to occur of the date of the
Executive's death, or a date, if any, of a breach by the Executive of
the provisions of paragraph 7, paragraph 8, or paragraph 9. If the
Executive dies or becomes totally disabled during the Severance Period,
the Executive or his estate, as the case may be, will be entitled to
the severance benefits provided for in this Agreement.
(ii) The Executive shall be eligible to receive payment of a bonus
under paragraph 2(b) in accordance with such paragraph. To the extent
that such amount is payable in accordance with paragraph 2(b)(i) or
2(b)(ii), such payment shall be in the amounts and at the times set
forth in those paragraphs. To the extent that such bonus is payable
under paragraph 2(b) other than in accordance with paragraph 2(b)(i) or
2(b)(ii), any such bonus shall be subject to a pro-rata reduction for
the portion of the performance period (January 1, 2002 through June 30,
2002) following the Date of Termination.
(iii) The Executive shall be eligible to receive payment of the bonus
under paragraph 2(c) for the performance period in which his Date of
Termination occurs, based on actual performance for the entire period,
and payable at the same time as it is payable for other participants in
the bonus plan and, if the Date of Termination occurs prior to June 30,
2002, subject to a pro-rata reduction for the portion of the
performance period following the Date of Termination.
(iv) The exercise restrictions with respect to stock options granted to
the Executive by the Company shall lapse, and the options shall become
vested and exercisable as of the Date of Termination. The portion of
any stock option granted to the Executive that is exercisable
immediately prior to the Date of Termination, as well as the portion of
any stock option that becomes exercisable by reason of this paragraph
(iv), shall remain exercisable for 90 days after the Date of
Termination, but in no event later than the date fixed for expiration
of the option (determined without regard to Executive's termination of
employment).
In no event, however, shall the Executive be entitled to receive any
amounts, rights, or benefits under paragraph (d)(i) or (d)(iv) above
unless he executes a release of claims against the Company in a form
prepared by the Company.
(e) Other Severance. Except as may be otherwise specifically provided in an
amendment of this paragraph (e) adopted in accordance with paragraph
14, the Executive's rights under this paragraph 4 shall be in lieu of
any benefits that may be otherwise payable to or on behalf of the
Executive pursuant to the terms of any severance pay arrangement of the
Company or any Affiliate or any other, similar arrangement of the
Company or any Affiliate providing benefits upon involuntary
termination of employment.
5. Duties on Termination. Subject to the terms and conditions of this
Agreement, during the period beginning on the date of delivery of a Notice of
Termination, and ending on the Date
12
of Termination, the Executive shall continue to perform his duties as set forth
in this Agreement, and shall also perform such services for the Company as are
necessary and appropriate for a smooth transition to the Executive's successor,
if any. Notwithstanding the foregoing provisions of this paragraph 5, the
Company may suspend the Executive from performing his duties under this
Agreement following the delivery of a Notice of Termination providing for the
Executive's resignation, or delivery by the Company of a Notice of Termination
providing for the Executive's termination of employment for any reason;
provided, however, that during the period of suspension (which shall end on the
Date of Termination), the Executive shall continue to be treated as employed by
the Company for other purposes, and his rights to compensation or benefits shall
not be reduced by reason of the suspension and the Executive shall continue to
be bound by his obligations under this Agreement and his duty of fidelity to the
Company. Following the Date of Termination, the Executive agrees to return to
the Company any keys, credit cards, passes, confidential documents or material,
or other property belonging to the Company, and to return all writings, files,
records, correspondence, notebooks, notes and other documents and things
(including any copies thereof) containing any confidential information or trade
secrets relating to the Company or the Affiliates. The Executive agrees to
represent in writing to the Company upon termination of employment that he has
complied with the foregoing provisions of this paragraph 5 and that he will
comply with paragraphs 7, paragraph 8, and paragraph 9.
6. Mitigation, Alienation, and Set-Off. The Executive shall not be
required to mitigate the amount of any payment provided for in this Agreement by
seeking other employment or otherwise. The Company shall be entitled to set off
against amounts payable to the Executive any amounts owed to the Company by the
Executive (and the Executive agrees to such set off for the purposes of the
Employment Rights Act 1996), but the Company shall not be entitled to set off
against the amounts payable to the Executive under this Agreement any amounts
earned by the Executive in other employment after termination of his employment
with the Company, or any amounts which might have been earned by the Executive
in other employment had he sought such other employment. Except as otherwise
provided in this paragraph, the interests of the Executive under this Agreement
are not subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, attachment, or garnishment by creditors of the
Executive or the Executive's beneficiary. However, to the extent that rights or
benefits under this Agreement otherwise survive the Executive's death, the
Executive's heirs and estate shall succeed to such rights and benefits pursuant
to the Executive's will or the laws of descent and distribution; provided that
the Executive shall have the right at any time and from time to time, by notice
delivered to the Company, to designate or to change the beneficiary or
beneficiaries with respect to such benefits.
7. Confidential Information. The Executive agrees that, during the
Agreement Term, and at all times thereafter:
(a) Except as may be required by the lawful order of a court or agency of
competent jurisdiction, except as necessary to carry out his duties to
the Company and its Affiliates, or except to the extent that the
Executive has express authorization from the Company, the Executive
agrees to keep secret and confidential indefinitely, all Confidential
Information, and not to disclose the same, either directly or
indirectly, to any other
13
person, firm, or business entity, or to use it in any way. The
Executive shall, during the continuance of the Executive's employment,
use the Executive's best endeavors to prevent the unauthorized
publication or misuse of any Confidential Information.
(b) To the extent that any court or agency seeks to have the Executive
disclose Confidential Information, he shall promptly inform the
Company, and he shall take reasonable steps to prevent disclosure of
Confidential Information until the Company has been informed of such
requested disclosure, and the Company has an opportunity to respond to
such court or agency. To the extent that the Executive obtains
information on behalf of the Company or any of the Affiliates that may
be subject to attorney-client privilege as to the Company's attorneys,
the Executive shall take reasonable steps to maintain the
confidentiality of such information and to preserve such privilege.
(c) Nothing in the foregoing provisions of this paragraph 7 shall be
construed so as to prevent the Executive from using, in connection with
his employment for himself or an employer other than the Company or any
of the Affiliates, knowledge which was acquired by him during the
course of his employment with the Company and the Affiliates, and which
is generally known to persons of his experience in other companies in
the same industry.
(d) For purposes of this Agreement, the term "Confidential Information"
shall include all non-public information (including, without
limitation, information regarding litigation and pending litigation)
concerning the Company and the Affiliates which was acquired by or
disclosed to the Executive during the course of his employment with the
Company, or during the course of his consultation with the Company
prior to the commencement of his employment and following his Date of
Termination (regardless of whether consultation is pursuant to
paragraph 12). For purposes of this Agreement, the term "Confidential
Information" shall also include all non-public information concerning
any other company that was shared with the Company or an Affiliate
subject to an agreement to maintain the confidentiality of such
information.
(e) Nothing in this paragraph 7 shall preclude the Executive from making a
protected disclosure in accordance with the Employment Rights ▇▇▇ ▇▇▇▇.
This paragraph 7 shall not be construed to unreasonably restrict the
Executive's ability to disclose confidential information in an
arbitration proceeding or a court proceeding in connection with the
assertion of, or defense against any claim of breach of this Agreement.
If there is a dispute between the Company and the Executive as to
whether information may be disclosed in accordance with this paragraph
(e), the matter shall be submitted to the court for decision.
8. Non-Disparagement. The Executive agrees that, while he is employed
by the Company, and for 12 months after his Date of Termination, he shall not
make any false, defamatory or disparaging statements about the Company, the
Affiliates, or the officers or directors of the Company or the Affiliates that
are reasonably likely to cause material damage to the Company, the Affiliates,
or the officers or directors of the Company or the Affiliates. While the
Executive is employed by the Company, and for 12 months after his Date of
Termination, the
14
Company agrees, on behalf of itself and the Affiliates, that neither the
officers nor the directors of the Company or the Affiliates shall make any
false, defamatory or disparaging statements about the Executive that are
reasonably likely to cause material damage to the Executive.
9. Noncompetition. The Company considers and the Executive acknowledges
that the following restraints, on which the Executive has had the opportunity to
take independent legal advice, are necessary for the reasonable protection by
the Company of its business or the business of the Affiliates, the clients
thereof or their respective affairs.
(a) The Executive shall not while he is employed by the Company or during
the 6 month period after the Date of Termination, except in the event
of a wrongful termination by the Company, be employed by, serve as a
consultant to, or otherwise in any capacity assist or directly or
indirectly provide services to a Competitor (defined below) if the
trade secrets, confidential information, or proprietary information
(including, without limitation, confidential or proprietary methods) of
the Company and the Affiliates to which the Executive had access during
his employment hereunder could reasonably be expected to benefit the
Competitor if the Competitor were to obtain access to such secrets or
information.
(b) The Executive shall not while he is employed by the Company or during
the 12 month period after the Date of Termination, except in the event
of a wrongful termination by the Company, solicit or attempt to solicit
any person, company, firm or business who during the 12-month period
prior to such solicitation or attempt by the Executive was a customer
or supplier of the Company or Affiliate and with whom the Executive had
business dealings during such 12 month period, provided that the
restriction in this paragraph (b) shall not apply to any activity on
behalf of a business that is not a Competitor.
(c) The Executive shall not while he is employed by the Company or during
the 12 month period after the date of the termination of his
employment, except in the event of a wrongful termination by the
Company, solicit, entice, persuade or induce any individual who is
employed by the Company or the Affiliates (or was so employed within 90
days prior to the Executive's action) and with whom the Executive had
business dealings during the 12 month period prior to the Executive's
action to terminate or refrain from renewing or extending such
employment or to become employed by or enter into contractual relations
with any other individual or entity other than the Company or the
Affiliates, and the Executive shall not approach any such employee for
any such purpose or authorize or knowingly cooperate with the taking of
any such actions by any other individual or entity.
(d) The Executive shall not directly or indirectly own an equity interest
in any Competitor (other than ownership of 1% or less of the
outstanding stock of any corporation listed on a national stock
exchange).
The term "Competitor" means any enterprise (including a company, person, firm or
business, whether or not incorporated) during any period in which a material
portion of its business is (and during any period in which it intends to enter
into business activities that would be) materially
15
competitive in any way with any business in which the Company or any of the
Affiliates was engaged and with which the Executive was involved during the
12-month period prior to the Executive's Date of Termination (including, without
limitation, any business if the Company devoted material resources to entering
into such business during such 12-month period). Nothing in this paragraph 9 or
in paragraph 7 or paragraph 8 shall be construed as limiting the Executive's
duty of loyalty to the Company, or any other duty he may otherwise have to the
Company, while he is employed by the Company.
10. Intellectual Property. In this paragraph 10 the term "Intellectual
Property" means all intellectual and industrial property and all rights therein
including, without limiting the generality of the foregoing, all inventions
(whether patentable or not, and whether or not patent protection has been
applied for or granted), improvements, developments, discoveries, proprietary
information, trade marks, trade ▇▇▇▇ applications, trade names, websites,
Internet domain names, logos, art work, slogans, know-how, technical
information, trade secrets, processes, designs (whether or not registrable and
whether or not design rights subsist in them); utility models, works in which
copyright may subsist (including computer software and preparatory and design
materials therefor), topography rights and all works protected by the rights or
forms of protection of a similar nature or having equivalent effect anywhere in
the world. Subject to the provisions of the Patents ▇▇▇ ▇▇▇▇, the Registered
Designs ▇▇▇ ▇▇▇▇ and the Copyright Designs and Patents ▇▇▇ ▇▇▇▇, if at any time
in the course of, or in connection with, his employment under this Agreement the
Executive makes or discovered or participates in the making or discovery of any
Intellectual Property directly or indirectly relating to or capable of being
used in the business carried on by the Company or by any Affiliate, full details
of the Intellectual Property shall immediately be disclosed in writing by him to
the Company and the Intellectual Property shall be the absolute property of and
vest in the Company. At the request and expense of the Company, the Executive
shall give and supply all such information, data, drawings and assistance as may
be necessary or in the opinion of the Company desirable to enable the Company to
exploit the Intellectual Property to the best advantage (as decided by the
Company), and shall execute all documents and do all things which may be
necessary or in the opinion of the Company desirable for obtaining patent or
other protection for the Intellectual Property in such parts of the world as may
be specified by the Company and for vesting the same in the Company or as it may
direct.
11. Statement of Particulars of Employment. This Agreement, including
the provisions of schedule 1 hereto, shall constitute the written statement of
particulars who provided pursuant to section 1 of the Employment Rights ▇▇▇
▇▇▇▇.
12. Assistance with Claims. The Executive agrees that, for the period
beginning on the Employment Commencement Date, and continuing for a reasonable
period after the Executive's Date of Termination, the Executive will assist the
Company and the Affiliates in defense of any claims that may be made against the
Company and the Affiliates, and will assist the Company and the Affiliates in
the prosecution of any claims that may be made by the Company or the Affiliates,
to the extent that such claims may relate to services performed by the Executive
for the Company and the Affiliates. The Executive agrees to promptly inform the
Company if he becomes aware of any lawsuits involving such claims that may be
filed against the Company or any Affiliate. The Company agrees to provide legal
counsel to the Executive in connection with
16
such assistance (to the extent legally permitted), and to reimburse the
Executive for all of the Executive's reasonable out-of-pocket expenses
associated with such assistance, including travel expenses. For periods after
the Executive's employment with the Company terminates, the Company agrees to
provide reasonable compensation to the Executive for such assistance. The
Executive also agrees to promptly inform the Company if he is asked to assist in
any investigation of the Company or the Affiliates (or their actions) that may
relate to services performed by the Executive for the Company or the Affiliates,
regardless of whether a lawsuit has then been filed against the Company or the
Affiliates with respect to such investigation.
13. Equitable Remedies. The Executive acknowledges that the Company
would be irreparably injured by a violation of paragraph 7, paragraph 8, or
paragraph 9, and he agrees that the Company, in addition to any other remedies
available to it for such breach or threatened breach, shall be entitled to a
preliminary injunction, temporary restraining order, or other equivalent relief,
restraining the Executive from any actual or threatened breach of paragraph 7,
paragraph 8, or paragraph 9. If a bond is required to be posted in order for the
Company to secure an injunction or other equitable remedy, the parties agree
that said bond need not be more than a nominal sum.
14. Amendment. This Agreement may be amended or cancelled only by
mutual agreement of the parties in writing without the consent of any other
person. So long as the Executive lives, no person, other than the parties
hereto, shall have any rights under or interest in this Agreement or the subject
matter hereof.
15. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, English law. In relation to any legal action or proceedings
arising out of or in connection with this Agreement ("Proceedings"), each of the
parties irrevocably submits to the exclusive jurisdiction of the English courts
(and the Employment Tribunals).
16. Severability. The invalidity or unenforceability of any provision
of this Agreement will not affect the validity or enforceability of any other
provision of this Agreement, and this Agreement will be construed as if such
invalid or unenforceable provision were omitted (but only to the extent that
such provision cannot be appropriately reformed or modified).
17. Waiver of Breach. No waiver by any party hereto of a breach of any
provision of this Agreement by any other party, or of compliance with any
condition or provision of this Agreement to be performed by such other party,
will operate or be construed as a waiver of any subsequent breach by such other
party of any similar or dissimilar provisions and conditions at the same or any
prior or subsequent time. The failure of any party hereto to take any action by
reason of such breach will not deprive such party of the right to take action at
any time while such breach continues.
18. Successors, Assumption of Contract. This Agreement shall be binding
upon and inure to the benefit of the Company and any successor of the Company,
subject to the following:
(a) The Company may assign its rights and obligations under this Agreement
to any Affiliate. The Company will require that any assignee (pursuant
to the preceding
17
sentence), and will require that any successor (whether direct or
indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business or assets of the Company, to
expressly assume and agree to perform this Agreement in the same manner
and to the same extent that the Company would be required to perform it
if no such assignment or succession had taken place.
(b) After an assignee or a successor assumes this Agreement in accordance
with this paragraph 18, only such assignee or successor shall be liable
for amounts payable after such assumption, and no other companies shall
have liability for amounts payable after such assumption.
(c) Notwithstanding the foregoing provisions of this paragraph 18, if an
assignee or the successor is required to assume the obligations of this
Agreement under paragraph 18(a), and fails to execute and deliver to
the Executive a written acknowledgment of the assumption at that time
or, if later, promptly following demand by the Executive for execution
and deliver of such an acknowledgment, then the successor shall not be
substituted as the Company, the Executive shall be entitled to payments
and benefits as provided under paragraph 4(d), and if the Executive is
then employed by the Company (or successor), the Executive's employment
shall be deemed to have been terminated by the Company under
circumstances described in paragraph 3(d), and the Executive shall not
be required to perform services under this Agreement after such deemed
termination.
(d) The Company's rights and obligations under this Agreement may not be
assigned to an entity that is not an Affiliate without the Executive's
consent.
19. Notices. Notices and all other communications provided for in this
Agreement shall be in writing and shall be deemed to have been duly received
when delivered in person or on the second business day following deposit in the
mail, sent by registered or certified mail or similar mailing method, return
receipt requested, postage prepaid and addressed, in the case of the Company, to
the following address:
Omega (UK) Worldwide, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
or to the Executive:
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Chestnuts
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
provided, however, that in no event shall any such communication be deemed to be
given later than the date it is actually received. All notices to the Company
shall be directed to the attention
18
of the Chairman of the Board, with a copy to the Secretary of the Company. Each
party, by written notice furnished to the other party, may modify the applicable
delivery address, except that notice of change of address shall be effective
only upon receipt.
20. Survival of Agreement. Except as otherwise expressly provided in
this Agreement, the rights and obligations of the parties to this Agreement
shall survive the termination of the Executive's employment with the Company.
21. Entire Agreement. Except as otherwise noted herein, this Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior and contemporaneous agreements, if any,
between the parties relating to the subject matter hereof; provided, however,
that nothing in this Agreement shall be construed to limit the Company's ability
to establish and maintain policies (or require the employee to enter into an
agreement) relating to confidentiality, rights to inventions, copyrightable
material, business and/or technical information, trade secrets, solicitation of
employees, interference with relationships with other businesses, competition,
and other similar policies or agreement for the protection of the business and
operations of the Company and the Affiliates.
22. Acknowledgment by Executive. The Executive represents and warrants
that (i) he is not, and will not become a party to any agreement, contract,
arrangement or understanding, whether of employment or otherwise, that would in
any way restrict to prohibit him from undertaking or performing his duties in
accordance with this Agreement or that restricts his ability to be employed by
the Company in accordance with this Agreement; (ii) his employment by the
Company will not violate the terms of any policy of any prior employer of the
Executive regarding competition; and (iii) his position with the Company, as
described in this Agreement, will not require him to improperly use any trade
secrets or confidential information of any prior employer, or any other person
or entity for whom he has performed services.
19
IN WITNESS THEREOF, the Executive has executed this Agreement as a
deed, and the Company has caused these presents to be executed in its name and
on its behalf, all as of the Effective Date.
SIGNED AS A DEED )
and DELIVERED by )
the Executive )
in the presence of: )
Name: ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Signature: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ Elder
Address: Chestnuts, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Occupation: CEO
Signed for and on behalf of Omega Worldwide, Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------
Its: Chairman of the Board
------------------------------
20
SCHEDULE 1
1. The Executive's period of continuous employment with the Company
commenced on 10 February 2002.
2. The Executive shall work normal business hours which are Monday to
Friday inclusive and such additional hours as may be necessary for the
performance of his duties and powers under this Agreement. No overtime will be
paid with respect to any hours worked by the Executive outside normal business
hours.
3. Each year the Company will contribute to a personal pension plan
approved under Chapter IV Part XIV of the Income and Corporation Taxes ▇▇▇ ▇▇▇▇
or to a Stakeholder Pension nominated by the Executive an annual amount equal to
the lesser of (a) 12% of the Executive's annual base salary under clause 2(a)
above and (b) the amount which (together with the contributions (if any) paid by
the Executive himself) equal the maximum amount which may be contributed to such
a plan in that year (without prejudicing its tax approved status). If the amount
in (b) is the amount to be contributed by the Company to such personal pension
plan, the Company shall pay an additional annual amount equal to the difference
between (a) and (b) directly to the Executive, which amount shall be subject to
deductions in respect of tax and national insurance contributions. Any payments
to be made under this paragraph shall be made monthly at the same time as base
salary payments.
4. There are no disciplinary rules applicable to the Executive. Any
disciplinary matter shall be dealt with by the Board or a person nominated by
the Board. If the Executive is dissatisfied with any disciplinary decision or
has a grievance relating to his employment, he should notify the Board in
writing.
5. There are no collective agreements currently in force which affect
directly or indirectly the terms and conditions of the Executive's employment.
21