Exhibit 4.6
DATED 9 July 2003
SERVICE AGREEMENT
BETWEEN
WOLSELEY PLC
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ BANKS
THIS AGREEMENT is made
the day of 9 July 2003.
BETWEEN:
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Wolseley plc, whose registered office is Parkview 1220, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ (the “Company”); and |
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Banks of ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ (the "Executive"). |
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| (1) |
The Executive is currently the Chief Executive Officer and is a director of the Company; and |
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The Company is entering into this Agreement for itself and for all of its Group Companies as defined in Clause 24 hereof and is duly authorised in that behalf. |
NOW IT IS HEREBY AGREED as follows:
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The Company hereby agrees to employ the Executive and the Executive agrees to act in relation to the Company with the job title stated in Schedule 1 or with such other job title of no less responsibility to which he shall from time to time be appointed by the Company, subject to the terms and conditions set out herein and in the Schedules attached hereto. |
2 COMMENCEMENT AND CONTINUOUS EMPLOYEMENT
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The Executive's period of continuous employment with the Company shall be deemed to have begun on the date specified in Schedule 2, and the Executive's period or periods of employment with the companies, firms or persons (if any) specified in Schedule 2 shall count as part of the Executive's period of continuous employment with the Company. |
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3.1 |
The Executive’s employment shall continue hereunder until terminated in accordance with the terms hereof. |
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3.2 |
Notwithstanding the provisions of sub-clause 3.1 above, this Agreement and the Executive's employment hereunder shall terminate no later than 31 July 2006 except where a written agreement shall be entered into between the parties supplemental to this Agreement and specifically providing for termination at some other time. |
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HOURS AND PLACE OF WORK |
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4.1 |
The Executive will work the
hours necessary or appropriate from time to time to carry out his duties
properly and effectively. During the continuance of his employment hereunder,
unless otherwise agreed in writing by the Company, the Executive shall devote
such of his time, attention and ability to the performance of his duties
hereunder as shall be necessary and shall not without the prior written consent
of the Company engage in any activity likely to require him to be absent
from work during the normal business hours of the Company or to affect his
ability to properly perform his duties hereunder. |
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4.2 |
The Executive will use his
best endeavours to promote the interests of the Company and shall not without
the previous written consent of the Company directly or indirectly be engaged,
concerned or interested in the carrying on of any other business activity;
provided that nothing in this sub-clause 4.2 shall prevent the Executive
from holding stocks and shares or other securities (conferring in aggregate
not more than 5% of the votes available to be cast at any general meeting
of the company concerned) which are listed and dealt in on any recognised
stock exchange, nor from holding units in any authorised unit trust, nor
from holding shares (conferring in aggregate not more than 5% of the votes
available to be cast at any general meeting of the company concerned) from
time to time dealt in under arrangements referred to as "over-the-counter" trading. |
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4.3 |
The Executive shall be subject
to the general control of the board of directors of the Company and shall
exercise and perform such powers and duties as are compatible with his job
title as aforesaid and shall from time to time be reasonably delegated to
him by the board of directors of the Company, and he shall be subject to
such restrictions as the board of directors of the Company shall from time
to time reasonably impose upon him. |
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4.4 |
The Executive will perform
his duties at such places as required by the Company. |
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5.1 |
As remuneration for his services
hereunder the Company shall pay to the Executive such emoluments and at such
times as are stated in Schedule 4. |
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5.2 |
In addition the Company shall
reimburse all travelling, hotel and out-of-pocket expenses reasonably incurred
by the Executive in or about the Company's business and with the prior approval
of the board of directors of the Company and for which he provides proper
receipts valid, where appropriate, for sales tax purposes. |
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5.3 |
The remuneration payable hereunder
shall be inclusive of any sums to which the Executive may from time to time
be entitled as a director of the Company. |
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5.4 |
In the event of any variation
in the remuneration payable to the Executive hereunder being made by agreement
between the parties (and whether or not such agreement shall be evidenced
by a written endorsement hereto), such variation shall not constitute a new
agreement but, (subject to any express agreement to the contrary) the employment
of the Executive hereunder shall continue subject in all respects to the
terms and conditions of this Agreement with such variation as aforesaid. |
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5.5 |
All remuneration payable to the Executive under this Agreement shall be deemed to accrue from day to day, and any commission or bonus to which the Executive may be entitled is to be calculated on the basis that one three-hundred-and sixty-fifth part thereof was earned for each day of each accounting reference period for which such commission or bonus is payable. |
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5.6 |
In the event of termination of this Agreement and the Executive's employment hereunder for any reason whatsoever, the Company shall be entitled to deduct from any remuneration payable to the Executive on such termination (whether in respect of any period before such termination or not) any monies which may at that time be owed by the Executive to the Company. |
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5.7 |
The Executive shall be entitled to participate in the ▇▇▇▇▇▇▇▇ Enterprises, Inc. defined contribution pension arrangements under which the employer contribution will be no less than 15% of basic salary each year together with 15% of bonus (of not more than $420,000) paid in respect of each financial year and shall also be entitled to participate in any life assurance scheme or other similar scheme operated by ▇▇▇▇▇▇▇▇ Enterprises, Inc. upon the terms and subject to the conditions of the rules of such schemes from time to time in force in respect of and for the benefit of the Executive. |
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5.8 |
The Executive shall be entitled to participate in the Wolseley plc 2001 Long Term Incentive Scheme in respect of an award to be made in respect of the financial year commencing 1 August 2003, which shall be in addition to the awards made in respect of the financial years commencing 1 August 2001 and 1 August 2002 thereunder. |
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5.9 |
For so long as the Executive is required by the Company to live in the United Kingdom in the discharge of his duties hereunder, the benefits detailed in Schedule 10 will be available to the Executive. |
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HEALTH CARE ARRANGEMENTS |
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6.1 |
The Company shall during the
subsistence of this Agreement and the Executive's employment hereunder effect
and maintain cover under the Executive Medical Program or other similar scheme
operated by ▇▇▇▇▇▇▇▇ Enterprises, Inc. upon the terms and subject to the
conditions of the rules of such scheme from time to time in force in respect
of and for the benefit of the Executive. |
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6.2 |
The Executive shall give all
due assistance reasonably required by the Company to enable it to reclaim
any statutory sick pay or disability or other state benefit entitlement from
time to time paid to him, in default of which the Company shall be entitled
to recover from the Executive or to deduct from any subsequent remuneration
payable to the Executive any amount which it has been unable so to reclaim
in consequence. This sub-clause shall be without prejudice to the provision
relating to termination of this agreement and the Executive's employment
hereunder set out in sub-clause 6.3.3 and sub-clause 6.4; provided that,
if such absence is due wholly or partly to the tortuous act of another, any
remuneration paid under this clause shall be repaid by the Executive to the
Company to the extent that the Executive makes a recovery from any third
party forthwith upon the Executive making such a recovery, and the Executive
will diligently prosecute his claim against such third party. |
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6.3 |
Whilst employed hereunder the
Executive shall be entitled to participate in a Permanent Health Insurance
Scheme (“the Scheme”) maintained by ▇▇▇▇▇▇▇▇ Enterprises, Inc. from time to time subject to the rules of the Scheme and the provisions of this sub-clause. Maintenance and continuation of the Scheme is at the discretion of the Company but the Company will not discontinue the Scheme without giving prior notice to the Executive. |
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6.4 |
In the event that the Executive is absent due to illness, accident or for any other cause which has prevented, in the reasonable opinion of the Company, the proper performance of the Executive’s duties hereunder for a period of nine months in the aggregate in any period of twelve months, and any such period of absence is not one which entitles the Executive to receipt of benefits under the Scheme as defined in clause 6.3, then the Company may terminate this Agreement upon giving twenty-six weeks’ notice to the Executive. |
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6.5 |
The Executive shall at the request and cost of the Company, but not more than once in each calendar year, submit to a medical examination by a registered medical practitioner nominated by the Company and hereby authorises any such registered medical practitioner and the Company and its medical adviser to consult together concerning the results of any such examination and to disclose to one another the details thereof. |
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7.1 |
The Executive shall be entitled
to the number of paid working days' vacation in each calendar year specified
in Schedule 6, to be taken at a time convenient to the Company, in addition
to statutory holidays and bank/public holidays. |
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7.2 |
The Executive’s entitlement to holidays shown in Schedule 6 shall accrue on a monthly basis from 1 January in any calendar year (fractions of a day’s holiday being ignored). Any accrued holiday outstanding and untaken as at 31 December in a calendar year may not be carried forward to the following calendar year without the Company’s express permission. |
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7.3 |
In the event of termination hereunder the Executive shall be entitled to receive payment for any accrued holiday outstanding and untaken at the effective date of termination. The Company may, at its discretion, require the Executive to take any outstanding holiday entitlement during any notice period and should the Executive fail to do so any entitlement to holiday pay in lieu will be lost. The Company may at its entire discretion require the Executive not to take any holiday during any period of notice in order to effect a smooth handover or finish outstanding work. |
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The Company shall during the subsistence of this Agreement provide a cash allowance to be determined from time to time in accordance with the Company’s car policy, or shall provide subject to the terms of such policy free of charge a motor car for the use of the Executive, of such type appropriate in the opinion of the Company to the Executive’s status but of no less value than the motor car provided by the Company for use by the Executive at the date hereof, to enable him to perform his duties hereunder properly and efficiently and shall keep it taxed and insured for use by the Executive and those authorised by the Company. |
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The provisions of Schedule 7 shall apply in relation to any motor car provided by the Company under this clause. The Executive shall not use such car in breach of any legal or contractual requirements as to insurance, road tax, the condition of such car or otherwise. |
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If the Company shall undergo any process of reconstruction or amalgamation (whether or not involving the liquidation of the Company) then the Executive shall be offered employment by the successor or proposed successor to the Company on terms no less favourable overall to those under this Agreement whether as to duties, responsibilities, remuneration or otherwise and if the Executive does not accept such offer within one month then the Company may terminate this Agreement forthwith and, in such event, the Executive 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). |
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The Executive shall at all times give to the Company all such advice, information and assistance with regard to the business or affairs of the Company as he is able. |
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11.1 |
The Executive shall not (except
as authorised or required by his employment hereunder) during the continuance
of his employment hereunder or after the termination thereof disclose to
any person, firm or company whatsoever any information relating to the organisation,
business or finances of the Company or any Group Company or any of its customers,
agents or suppliers or any of its trade secrets or confidential details of
any dealings, transactions or affairs of which he is or may become possessed
during his employment hereunder and shall keep with inviolable secrecy all
matters entrusted to him and shall not use for his own or another’s advantage, or reveal to any person, firm, company or organisation, and shall use his best endeavours
to prevent the disclosure or use of any such information in any manner which may injure or cause loss whether directly or indirectly to the Company or any Group Company, and the obligations in this sub-clause 11.1 contained shall (without limitation to their generality) apply to the matters (if any) specified in Schedule 3. |
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11.2 |
Any notes or memoranda or copies
thereof made by the Executive during the subsistence of this Agreement or
at any time thereafter relating to any matter within the scope of the business
of the Company or any Group Company or concerning any of its dealings, transactions
or affairs shall be the property of the Company or any Group Company, and
the Executive will not either during the subsistence of this Agreement or
at any time thereafter use or permit to be used any such notes or memoranda
or copies thereof otherwise than for the benefit of the Company or any Group
Company and the Executive shall, immediately upon termination of his employment,
or sooner if it is required by the Company or any Group Company, deliver
to the Company or any Group Company any and all literature, documents, data,
information, order forms, price and customer lists, memoranda, correspondence,
customer orders, records, cards, all software and other items belonging or
relating to the Company or any Group Company and any copies thereof and all
machines, parts, equipment and other materials received by the Executive
from the Company or any Group Company or from any third party in connection
with the business of the Company or any Group Company. |
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11.3 |
The Executive shall upon the termination of his employment, or sooner if it is required by the Company, print out and deliver to the Company a copy of all the files and documents, relating in any way to the Company or any Group Company or its or their business, which are stored either on any computer or on any storage medium, not being located on business premises of the Company or any Group Company, which are in the possession, custody or power of the Executive and the Executive shall forthwith thereafter on being asked by the Company or any Group Company submit to the supervised deletion of any or all such materials and any copies of any of them. |
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11.4 |
The Executive’s obligations under sub-clauses 11.1, 11.2 and 11.3 shall be in addition to and not in substitution for any obligations imposed upon him by law in relation to abuse of confidential information. |
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11.5 |
The restrictions in this section shall not apply to any disclosure or use authorised by the board of directors of the Company or any Group Company or required by law. |
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11.6 |
For the purposes of sub-clauses 11.1 to 11.3 the Company has entered into this Agreement as agent for and trustee of all companies, which may from time to time be part of the Group (as defined in Schedule 9). |
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12.1 |
The Executive (if a director
of the Company) shall not be entitled (except with the written consent of
the board of directors of the Company) during the continuance of this Agreement
to resign his directorship or disqualify himself from holding office as a
director. If the Executive is or becomes disqualified from being a director
by reason of any order made by any competent court, the Company may terminate
the Executive’s employment summarily without compensation. |
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12.2 |
Unless the Company otherwise
agrees in writing, the Executive shall upon the termination of this Agreement
and his employment hereunder for any reason whatsoever without another Agreement
being entered into between the parties be deemed with effect from the date
of such termination to have resigned any directorship of the Company which
he may then hold. The Company is irrevocably authorised by the Executive
to appoint someone in his name and on his behalf to sign any documents and
to do all things necessary to give effect to his resignation. |
13 INTELLECTUAL PROPERTY
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13.1 |
It shall be part of the normal
duties of the Executive at all times to consider in what manner and by what
new methods or devices the products, services, processes, equipment or systems
of the Company might be improved. Subject to the provisions of sections 39-43
of the Patents ▇▇▇ ▇▇▇▇ (as amended), the Executive acknowledges and agrees
that all intellectual property rights in any matter made or discovered by
him during the term of his employment by the Company (whether or not during
office hours) affecting or relating in any way to the business from time
to time of the Company or capable of being used therein or otherwise relating
to the Executive’s duties shall, forthwith be disclosed to the Company and shall belong to the Company
and the Executive shall take all such steps as are necessary to vest the rights in the Company. |
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13.2 |
Subject to the provisions of
sections 39-43 of the Patents ▇▇▇ ▇▇▇▇ (as amended), the Executive hereby
fully and irrevocably assigns to the Company all present and future copyrights,
design rights, rights in any registered design and other proprietary rights
for the full term thereof throughout the world in respect of all works written,
drawn or otherwise recorded, originated, conceived or made by the Executive
during the term of his employment with the Company. This assignment shall
not apply to works written, originated, conceived or made by the Executive
wholly outside his normal working hours hereunder and wholly unconnected
with his service hereunder. To the extent that the law in any country does
not permit or restricts the scope or enforceability of any such assignment
then this assignment shall operate to give the Company all such exclusive
rights in such copyrights, design rights and other proprietary rights as
are permissible under such law. |
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13.3 |
The Executive hereby irrevocably waives in favour of the Company and its successors in title and assigns all moral rights, which he may at any time have in any of the works referred to in sub-clauses 13.1 and 13.2. |
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13.4 |
Subject to the provisions of sections 39-43 of the Patents Act 1977 (as amended), the Executive, if and whenever required to do so by the Company (both during his employment under this Agreement and afterwards) shall, at the expense of the Company, execute such documents and do such things as the Company may require to enable the Company or its nominee: |
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13.4.1 |
to apply for a patent, registered design or other protection in the UK or any other part of the world in respect of any of the intellectual property rights referred to in sub-clauses 13.1 and 13.2 above; |
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13.4.2 |
to be vested with any such patent, registered design or other intellectual property rights referred to in sub-clauses 13.1 and 13.2 above in the UK and any other part of the world; and |
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13.4.3 |
to enable the Company to prosecute, enforce and defend any such patent, registered design or other intellectual property rights referred to in sub-clauses 13.1 and 13.2 above in the UK or any other part of the world. |
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DISCIPLINARY PROCEDURES |
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14.1 |
The Executive's employment
hereunder shall be subject to the disciplinary rules contained in the Company's
rule book or other appropriate document which is available for inspection
by the Executive at the registered office of the Company. |
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14.2 |
If the Executive is dissatisfied
with any disciplinary decision relating to him or has any other grievance
relating to his employment hereunder, he may seek redress by applying to
the Group Chief Executive, who alone shall decide the steps consequent upon
such application and the procedure to be followed. If the Executive is dissatisfied
with the result of any such application, he shall have the right to appeal
to the Chairman of Wolseley plc. |
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14.3 |
The Executive shall at all
times observe the Wolseley plc Policies and Procedures Manual including any
codes and guidelines relating to share dealings as may be issued from time
to time of which he is deemed hereunder to have notice. The Executive shall
not at any time make any untrue statement in relation to the Company and
in particular but without limitation shall not after the determination of
his employment hereunder wrongfully represent himself as being employed by
or connected with the Company. |
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For the purpose of carrying out an investigation in relation to any acts or defaults (or alleged or suspected acts or defaults) of the Executive the Company may at any time or times at its discretion suspend the Executive from his employment hereunder for a period or periods not in aggregate exceeding twenty-six weeks in any calendar year but without prejudice to the Executive's right to receive his full remuneration hereunder and may require the Executive not to enter the Company’s premises during such period of suspension. For the avoidance of doubt, this right is separate from the Company’s rights under sub-clause 16.3, which arise on notice of termination of the Executive’s employment. |
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16.1 |
Termination of employment hereunder will be effective at the expiry of a notice period of not less than:- |
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(i) |
twelve months’ given by the Company to the Executive; or |
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(ii) |
six months’ given by the Executive to the Company |
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such notice having been given in writing. |
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16.2 |
Where notice of termination has been given in accordance with sub clause 16.1 the Company reserves the right to make a payment of salary and bonus and the value of benefits (including the value of benefits accruing under (but not the amount of any contributions made by the Company to) any pension scheme in respect of which the Executive is a member) in lieu of notice should it so wish. Any such payment in lieu of notice will be subject to deduction of such sum as determined by the Company (to reflect any accelerated receipt) and deduction of appropriate payroll taxes and social security deductions. The Executive accepts that payment by the Company under this clause is in full and final settlement of all and any claims that he has or may have against the
Company or any of its directors, officers or employees arising out of or relating to his employment by the Company and his directorships of the Company or the termination of or resignation from his employment or directorships. |
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16.3 |
Without prejudice to the Executive’s continued right to salary and other benefits under this Agreement, the Company may at any time after either party has given notice of termination of his employment require the Executive (i) not to attend any premises of the Company and suspend him from the performance of any duties or obligations under this Agreement for all or any part of the notice period, (ii) to resign immediately from any offices he may hold in the Company, and (iii) to take any accrued holiday entitlement during this period. For theavoidance of doubt, where the Company exercises the right expressed in this sub-clause the Executive may not engage in work with any third party. |
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16.4 |
The terms of sub-clause 16.1 above are without prejudice to the terms of clauses 6.3, 6.4, 12.1 and 17 hereof. |
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Notwithstanding anything herein contained, the Company shall have the power forthwith to terminate this Agreement and the Executive's employment hereunder without any compensation in any of the following events, namely: |
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17.1 |
If the Executive shall without
reasonable cause neglect or refuse to discharge his duties hereunder; or |
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17.2 |
If the Executive should be
in receipt of a statutory demand under part IX of the Insolvency ▇▇▇ ▇▇▇▇
from any creditor, or if he should commit any of those acts formerly defined
as "acts of bankruptcy" by section 1 (1) of the Bankruptcy ▇▇▇ ▇▇▇▇ for the purposes of that Act or if any interim order should be made against him under part VIII of the Insolvency ▇▇▇ ▇▇▇▇ or equivalent provisions under United States laws; or |
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17.3 |
If the Executive shall be responsible
for any dishonesty or misconduct which in the reasonable opinion of the Company
shall prejudicially affect the business of the Company. |
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This clause is without prejudice to any rights the Company may have at common law or otherwise to terminate the Executive’s employment summarily. |
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The termination of this Agreement and the Executive's employment hereunder howsoever arising shall not affect such of the provisions hereof as are expressed to operate or have effect thereafter and shall be without prejudice to any right of action already accrued to either party in respect of any breach of this Agreement by the other. |
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| 19 |
OBLIGATIONS AFTER TERMINATION |
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19.1 |
The Executive shall not within
a period of one year after the termination for any reason of this Agreement
and his employment hereunder and without the written permission of the Company
and any relevant Group Company: |
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19.1.1 |
Either solely or jointly with
or as director, employee, manager or agent or in any other capacity whatsoever,
for any other person, firm or company directly or indirectly carry on or
be engaged or concerned or interested in any business competing in the Technical
Field (as defined in Schedule 8) with any of such business carried on by
the Company or any Group Company immediately prior to the termination of
his employment hereunder and with which the Executive was directly concerned
or connected or of which he had personal knowledge during the twelve months
immediately prior to the date of termination of his employment or in any
other way enable or assist any other person, firm or company to carry on
any such business; nor |
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19.1.2 |
Induce or encourage any individual
who is or has been in the employment of the Company or Group Company at any
time during the period of twelve months immediately prior to the termination
of his employment hereunder and with whom the Executive has had direct contact
in the course of his employment with the Company to join the employment of
any other person, firm or company by which the Executive may be employed
or with which he may be associated if such employment would require such
individual to exercise any special skill or knowledge acquired as a result
of that individual's employment with the Company or Group Company; nor |
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19.1.3 |
So as to compete with the Company
or any Group Company for the sale or supply of products or services which
are of the same or materially similar kind as any products or services sold
or supplied by the Company or any Group Company during the twelve months
immediately before the date of termination of the Executive’s employment, and with which sale or supply the Executive was directly concerned or connected or of which he had personal knowledge during the twelve months before the termination of his employment, canvass, solicit or approach or cause to be canvassed, solicited or approached, (or endeavour to do any of the foregoing), any person, firm, company or organisation who or which at any time during the twelve months immediately
before the date of termination of the Executive’s employment was a customer of the Company or any Group Company and with whom or which the Executive had dealings during the twelve months before the termination of his employment; nor |
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19.1.4 |
So as to compete with the Company or any Group Company for the sale or supply of products or services which are of the same or materially similar kind as any products or services sold or supplied by the Company or any Group Company during the twelve months immediately before the date of termination of the Executive’s employment, and with which sale or supply the Executive was directly concerned or connected or of which he had personal knowledge during the twelve months before the termination of his employment, deal or contract, or endeavour to do so, with any person, firm, company or organisation who or which at any time during the twelve months immediately before the date of termination of the Executive’s employment was a customer of the Company or
any Group Company and with whom or which the Executive had dealings during the twelve months before the termination of his employment. |
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19.2 |
Each and every obligation under
sub-clause 19.1 shall be treated as a separate obligation and shall be severally
enforceable as such. |
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19.3 |
Nothing contained in this clause
19 shall prevent or restrict the Executive from being engaged, concerned
or interested in any business in which the Company has ceased to be engaged,
concerned or interested prior to the termination of his employment hereunder. |
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19.4 |
Nothing contained in this clause
19 shall prevent the Executive from holding stocks and shares or other securities
(conferring in aggregate not more than 5% of the votes available to be cast
at any general meeting of the company concerned) which are listed and dealt
in on any recognised stock exchange, nor from holding units in any authorised
unit trust, nor from holding shares (conferring in aggregate not more than
5% of the votes available to be cast at any general meeting of the company
concerned) from time to time dealt in under arrangements referred to as "over-the-counter" trading. |
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19.5 |
If any restriction contained
in clause 19.1 shall be adjudged by any court of competent jurisdiction to
be void or unenforceable as going beyond what is reasonable in the circumstances
but would be valid if part of the wording were deleted the said restriction
shall apply with such deletions as may be necessary to make it valid and
effective. |
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19.6 |
For the purposes of sub clause 19.1 the Company has entered into this Agreement as agent for and trustee of all companies, which may from time to time be part of the Group (as defined in Schedule 9). |
20 SHARES/OPTIONS
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It is acknowledged that the Executive may, during his employment, be granted rights upon the terms and subject to the conditions of the rules from time to time of the Wolseley plc 2001 Long Term Incentive Scheme; the Wolseley plc 2002 Long Term Incentive Scheme; Wolseley Executive Share Option Scheme 1984; Wolseley Executive Share Option Scheme 1989; the Employee Share Purchase Plan 2001 or any other profit sharing, share incentive, share option, bonus share scheme or phantom option scheme operated by Wolseley plc with respect to shares in Wolseley plc. If, on termination of his employment, whether lawfully or in breach of contract, the Executive loses any of the rights or benefits under such scheme (including rights or benefits which the
Executive would not have lost had his employment not been terminated) the Executive shall not be entitled, by way of compensation for loss of office or otherwise, to any compensation for the loss of any rights under any such scheme. |
21 SCOPE OF AGREEMENT
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This Agreement is entered into in substitution for all rights and liabilities of either party expressed or implied in all former Agreement or arrangements, whether written, oral or implied between the parties relating to the employment of the Executive, and the waiver of all such rights and release of all such liabilities is evidenced by the signature hereof. This Agreement sets forth the entire understanding of the parties subject as herein expressly contained. |
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Any notice given under this Agreement shall be deemed well served if, when addressed to the Company, it is left at its registered office or sent by registered post addressed to the Company at its registered office, or, if when addressed to the Executive, it is served personally or sent by registered post addressed to him at his usual or last known place of abode, and in case of service by post the date of service shall be deemed to be the day following the date of posting. |
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This Agreement constitutes written particulars of the Executive's terms of employment with the Company for the purposes of the Employment Rights ▇▇▇ ▇▇▇▇ and any legislation amending, replacing or re-enacting the same, and this Agreement replaces all previous notices under that Act and any other such legislation. |
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24.1 |
Subject to sub-clause 24.3
below the expression "the Company", when used in this Agreement, shall mean and include the Company as defined in the heading to this Agreement and all other companies (if any) which may from time to time be part of the Group (as defined in Schedule 8), and the Executive may be required to exercise and perform his powers and duties hereunder in relation to any company in the Group. |
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24.2 |
In carrying out his duties
hereunder, the Executive shall at all times be governed by the terms of this
Agreement, and it is hereby expressly agreed that no contract of employment
arises by virtue of this Agreement between the Executive and any company
or companies within the Group other than the company named in the heading
to this Agreement to the intent that for this purpose the expression "the Company" shall be read and construed accordingly. It is further agreed that this Agreement supersedes all and every agreement made between the Executive and any member of the Wolseley plc group made at any time before the date hereof whether or not such agreement was in writing. |
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24.3 |
The Expression "Group Company" shall for the purposes of sub-clauses 11.1 and 19.1 mean and include any company in the Group for the benefit of which or in relation to which the Executive may, pursuant to sub-clause 24.1, have exercised and performed his powers and duties hereunder at any time within the period of twelve months immediately prior to the termination of this Agreement and the Executive's employment hereunder. For the purposes of sub-clauses 11.1 and 19.1 “the Company” means the company named in the heading to this Agreement. |
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The clause headings herein are included for convenience only and shall not affect the interpretation hereof in any way whatever. |
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This Agreement shall be governed by the laws of England, where: |
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26.1 |
Any unresolved dispute or controversy
arising under or in connection with this Agreement or otherwise concerning
the Executive’s relationship with the Company, whether arising in contract, tort or otherwise, shall be settled exclusively by arbitration conducted in accordance with the rules of the American Arbitration Association applicable to the arbitration of employment disputes then in effect. The arbitrators shall not have the authority to add to, detract from, or modify any provision hereof, nor to award punitive damages to any injured party. A decision by a majority of the arbitration panel shall be final and binding. Judgment may be entered on the arbitrators’ award in any court having jurisdiction. The arbitration
proceeding shall be held in the city where the principal office of ▇▇▇▇▇▇▇▇ Enterprises, Inc. is located. Notwithstanding the foregoing, the Company shall be entitled to seek injunctive or other equitable relief from any court of competent jurisdiction, without the need to resort to arbitration. Should judicial proceedings be commenced to enforce or carry out this provision or any arbitration award, the prevailing party in such proceedings shall be entitled to reasonable attorney’s fees and costs in addition to other relief. |
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26.2 |
Any or all disputes, disagreements or litigation relating to or under terms of this Agreement, including any arbitration or litigation relating to any arbitration under this Section must be litigated and/or arbitrated in the Commonwealth of Virginia. In order to effectuate this provision, the parties expressly consent to personal jurisdiction in Virginia and to a Virginian venue. This Agreement shall in all respects be construed according to the laws of England and Wales, without regard to its conflict of law principles. |
IN WITNESS whereof this Agreement has been executed by the parties the day and year first before written.
THE SCHEDULES HEREINBEFORE REFERRED TO
SCHEDULE 1
(Sub-Clause 1.1)
Job title: Group Chief Executive Officer of Wolseley plc
SCHEDULE 2
(Clause 2)
Date continuous employment began: 1 August 1967
Period of employment with previous companies, firms or persons which count as part of the Executive's period of continuous employment: None
SCHEDULE 3
(Clause 11)
Any information relating to the following matters is to be regarded as confidential for the purpose of this Agreement, and the Executive's obligations under Clause 5 shall apply to such information: N/A
SCHEDULE 4
(Clause 5)
Remuneration
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The Company shall pay the Executive a basic salary at the rate of US$1,155,000 (one million, one hundred and fifty five thousand US dollars) per annum by twelve equal payments on a pre-determined date in each calendar month, such salary to be reviewed annually, or, in the case where annual salary is paid by thirteen four weekly instalments, on a pre-determined date as published from time to time by the Company (the Company having the option to make payment by monthly or four-weekly instalments). |
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In addition, the Company shall pay to the Executive a commission or bonus calculated in accordance with a scheme to be agreed from time to time between the Company and the Executive. |
SCHEDULE 6
(Clause 7)
Number of working days' vacation in each calendar year: 25 days.
SCHEDULE 7
(Clause 8)
Unrestricted private use. The Executive shall be liable for tax on the fuel used for private purposes.
SCHEDULE 8
(Clause 19)
Technical Field means The distribution and supply of plumbing and heating supplies.
SCHEDULE 9
(Clause 24)
The Group means Wolseley plc and all its subsidiaries from time to time as defined in section 736 of the Companies ▇▇▇ ▇▇▇▇.
SCHEDULE 10
(Clause 5.9)
The Company shall provide the Executive with a car for the use of the Executive whilst in the United States, of such type appropriate in the opinion of the Company to the Executive’s status but of no less value than the motor car provided for use for use by the Executive at the date hereof and the Company shall keep it taxed and insured for use by the Executive and those authorised by the Company. The provisions of Schedule 7 shall apply in relation to any motor car provided by the Company under this clause. The Executive shall not use such car in breach of any legal or contractual requirements as to insurance, road tax, the condition of such car or otherwise.
The Company shall meet the cost of providing the Executive with a driver for business journeys in the UK.
The Company will ensure that the Executive’s health and dental care coverage extends to any treatment required to be given in the UK.
The Company shall pay the Executive a housing allowance of £70,000 p.a. to be paid at the same time as and in the same way as basic salary.
The Company will pay the reasonable expenses of repatriating the Executive and his family’s personal effects to the United States to the extent that the Executive is no longer required to live in the United Kingdom in the discharge of his duties hereunder.
The Company will pay for six return business class airfares each year between the UK and the Executive’s home in the USA for the benefit of the Executive and his wife.
The Company will ensure that the Executive is in no worse a position than he would have been in respect of the liability to pay income tax on his earnings hereunder than he would have been in had he not been required to remove his residence from the USA to the UK and so that the Company will pay an amount equal to the additional tax, if any, exigible in respect of such earnings had he been taxed on them in the USA rather than in the UK. For the avoidance of doubt, the Executive will continue to be responsible for all State of Virginia taxes and the Company will defray the cost of preparing the Executive’s UK and US tax returns.
Executed as a Deed for and on behalf of Wolseley plc:
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Director |
/s/ ▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇ |
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Secretary |
/s/
▇▇▇▇ ▇ ▇▇▇▇▇ |
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Signed as a Deed and delivered
by the Executive in the presence of : |
/s/ ▇▇▇▇▇▇
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