Exhibit 4.8
DATED 13 JUNE 2001
BRIGHT STATION PLC
and
▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------
SERVICE AGREEMENT
---------------------------
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
CONTENTS
1. DEFINITIONS ............................................................. 1
2. APPOINTMENT ............................................................. 1
3. DURATION OF THE EMPLOYMENT .............................................. 2
4. SCOPE OF THE EMPLOYMENT ................................................. 2
5. HOURS AND PLACE OF WORK ................................................. 3
6. REMUNERATION ............................................................ 3
7. DEDUCTIONS .............................................................. 4
8. EXPENSES ................................................................ 4
9. HOLIDAYS ................................................................ 4
10. SICKNESS BENEFITS ....................................................... 5
11. PENSION AND MEDICAL INSURANCE ARRANGEMENTS .............................. 5
12. EMPLOYEE SHARE SCHEME RIGHTS ............................................ 6
13. RESTRICTIONS ON OTHER ACTIVITIES BY THE EXECUTIVE ....................... 6
14. CONFIDENTIAL INFORMATION AND COMPANY DOCUMENTS .......................... 7
15. INVENTIONS AND OTHER INTELLECTUAL PROPERTY .............................. 8
16. TERMINATION ............................................................. 9
17. TERMINATION OF DIRECTORSHIP ............................................. 11
18. RESTRICTIVE COVENANTS ................................................... 11
19. PRESCRIBED INFORMATION .................................................. 14
20. DATA PROTECTION ......................................................... 15
21. SEVERABILITY ............................................................ 15
22. COUNTERPARTS ............................................................ 15
23. NOTICES ................................................................. 15
24. CHOICE OF LAW AND SUBMISSION TO JURISDICTION ............................ 16
THIS AGREEMENT is dated 13 June 2001 and is made BETWEEN:
(1) BRIGHT STATION PLC (registered number 1890236) whose registered office is
at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ (the
"Company"); and
(2) ▇▇▇▇▇▇▇ ▇▇▇▇ of Byways, Woodland Drive, Farnham GU1O 45G (the
"Executive")
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
1.1 In this Agreement:
1.1.1 the following expressions have the following meanings:
"Admission" means the admission of the Company's new ordinary shares to
listing on the Official List of the UK Listing Authority and to trading
on the London Stock Exchange becoming effective, as set out in the
document comprising a prospectus to be issued by the Company on 13 June
2001
the "Board" means the Board of Directors for the time being of the
Company or any Committee of the Board (including, without limitation, the
Remuneration Committee)
the "Employment" means the Executive's employment hereunder
the "Group" means the Company and the Group Companies
"Group Company" means any holding company for the time being of the
Company or any subsidiary for the time being of the Company or of any
such holding company (for which purpose the expressions "holding company"
and "subsidiary" shall have the meanings ascribed thereto by section 736
Companies Act 1985);
1.1.2 references to clauses and sub-clauses are to clauses and sub-clauses of
this Agreement;
1.1.3 the headings to the clauses are for convenience only and shall not affect
the construction or interpretation of this Agreement.
2. APPOINTMENT
The Company shall employ the Executive and the Executive agrees to serve
the Company as Chief Executive Officer of the Company on and subject to
the terms and conditions specified herein.
1
3. DURATION OF THE EMPLOYMENT
3.1 The Employment shall be conditional upon and effective from the date of
Admission and, subject to clause 16, shall continue until terminated by
either party giving to the other not less than 12 months' notice in
writing.
3.2 This Agreement will replace and supersede all previous agreements and
arrangements relating to the employment of the Executive by the Company
or any other Group Company (but without prejudice to any outstanding
salary, bonus or unexercised share options payable to the Executive under
such previous arrangements) with effect from Admission. Such previous
agreements and arrangements shall continue with full force and effect
until the date of Admission, to the exclusion of this Agreement.
3.3 Notwithstanding clause 3.1, the Employment shall terminate when the
Executive reaches the normal retiring age from time to time applicable to
directors of the Company, such age currently being 70.
3.4 The Executive's period of continuous employment began on 6 June 2000.
3.5 The Executive represents and warrants that he is not bound by or subject
to any court order, agreement, arrangement or undertaking which in any
way restricts or prohibits him from entering into this Agreement or from
performing his duties hereunder.
4. SCOPE OF THE EMPLOYMENT
4.1 The Executive shall be employed as Chief Executive Officer of the
Company, in which position he shall:
4.1.1 unless otherwise directed by the Board or prevented by incapacity and
subject to clause 9, the Executive shall, during normal business hours
and during such other hours as may be necessary, devote the whole of his
time, attention and skill to the business of the Company and any Group
Company for whom he is required to carry out duties by the Board pursuant
to this clause 4;
4.1.2 faithfully and diligently perform such duties and exercise such powers
consistent with his position as may from time to time be assigned to or
vested in him by the Board and use his best endeavours to promote the
interests of the Company and any Group Company;
4.1.3 comply with the reasonable and lawful directions of the Board;
4.1.4 observe and comply with the Articles of Association of the Company and
comply with such of the Company's rules, regulations, policies and
procedures from time to time in force as, in the case of rules,
regulations, policies and procedures not derived from law or regulation
are reasonable and have been previously notified to the Executive; and
4.1.5 keep the Board at all times promptly and fully informed (in writing if so
requested) of his conduct of the business of the Company and any Group
Company and provide such explanations in connection therewith as the
Board may require.
2
4.2 The Executive shall if and so long as the Company requires and without
any further remuneration therefor than is herein mentioned, in addition
to those duties which he is required to perform for the Company:
4.2.1 carry out his duties on behalf of any Group Company; and
4.2.2 act as a director or officer of any Group Company (provided that this
shall be subject to the prior agreement of the Executive, such agreement
not to be unreasonably withheld or delayed).
5. HOURS AND PLACE OF WORK
5.1 The Executive shall work such hours as are necessary for the proper
performance of his duties, with a minimum of 40 hours from 9.00 a.m. to
5.30 p.m. Monday to Friday. The Executive and the Company agree that by
virtue of his seniority with the Company, the provisions of the Working
Time Regulations 1998 do not apply to his employment hereunder.
5.2 The Executive's place of work will initially be the Company's offices at
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ or elsewhere within Central London but the Company
may require the Executive to work in any other location within the United
Kingdom, provided that this shall not exceed 10 weeks in aggregate in any
52 week period. The Executive will be given reasonable notice of any
change in his place of work.
5.3 If the Executive's principal place of work is changed to a location which
is outside reasonable commuting distance from his home, the Company will
reimburse his reasonable relocation costs.
5.4 The Executive may be required to travel on behalf of the Company or any
Group Company for whom he is required to carry out duties by the Board
pursuant to clause 4 anywhere in the world on reasonable notice at the
Company's expense, provided that this shall not exceed 8 weeks in any 52
week period.
6. REMUNERATION
6.1 The Company shall pay to the Executive a Salary at the rate of 150,000
per annum, payable by equal monthly instalments in arrears on or before
the last day of each calendar month.
6.2 Salary shall be subject to annual review by the Board.
6.3 The Company shall pay the Executive a guaranteed bonus of (Euro)75,000
per annum (the "Guaranteed Bonus" and a discretionary bonus of up to
(Euro)75,000 per annum (the "Discretionary Bonus"). The Guaranteed Bonus
and Discretionary Bonus shall be payable in respect of each complete
financial year of the Company (or rateably in respect of each part
thereof) during which the Employment subsists.
6.4 The remuneration specified in clauses 6.1 and 6.3 shall be inclusive of
any fees to which the Executive may be entitled as a director of the
Company or any Group Company.
3
6.5 Payment of Salary, Guaranteed Bonus and Discretionary Bonus to the
Executive shall be made either by the Company or by a Group Company, and
if by more than one company, in such proportions as the Board may from
time to time think fit.
7. DEDUCTIONS
For the purposes of the Employment Rights ▇▇▇ ▇▇▇▇, the Executive hereby
authorises the Company to deduct from his remuneration (including but not
limited to Salary, Guaranteed Bonus and Discretionary Bonus) and/or any
sums due to the Executive under this Agreement any sums due from him to
the Company.
8. EXPENSES
8.1 The Company shall reimburse the Executive in respect of all expenses
reasonably incurred by him in the proper performance of his duties,
subject to the Executive providing such receipts or other evidence as the
Company may reasonably require.
8.2 The Executive will be issued with a Company credit card on condition that
he:
8.2.1 takes good care of such card and forthwith reports any loss of it to the
Company;
8.2.2 uses the card only for the purposes of the Company's business or the
business of the Group; and
8.2.3 returns the card forthwith to the Company on request.
9. HOLIDAYS
9.1 The Executive shall be entitled to all bank and public holidays normally
observed in England and a further 25 working days' paid holiday in each
holiday year (being the period from 1 January to 31 December). The
Executive may only take his holiday at such times as are convenient to
the Company.
9.2 In the respective holiday years in which the Employment commences or
terminates, the Executive's entitlement to holiday shall accrue on a pro
rata basis for each month of service during the relevant year.
9.3 If, on the termination of the Employment, the Executive has exceeded his
accrued holiday entitlement, the excess may be deducted from any sums due
to him. If the Executive has any unused holiday entitlement, the Company
may either require the Executive to take such unused holiday during any
notice period or make payment in lieu thereof.
9.4 Holiday entitlement for one holiday year may not be taken in subsequent
holiday years unless otherwise agreed by the Board. Unless otherwise
agreed with the Board, failure to take holiday entitlement in the
appropriate holiday year will lead to forfeiture of any accrued holiday
not taken, without any right to payment in lieu thereof.
4
10. SICKNESS BENEFITS
10.1 The Company shall continue to pay the Executive's Salary during any
period of absence on medical grounds up to a maximum of 120 working days
in any period of 12 months or one period of absence (if longer), subject
to the Executive complying with the Company's rules governing
notification and evidence of absence on medical grounds from time to time
in force. The Executive shall from time to time if required:
10.1.1 complete self-certification forms provided by the Company in respect of
any absence from work due to sickness or incapacity; and
10.1.2 undergo at the Company's expense a medical examination by a doctor
appointed by the Company at such time or times as the Company may select
and permit the disclosure of the outcome of such medical examination to
the Company.
10.2 Payment of the Executive's salary pursuant to clause 10.1 shall be
inclusive of any Statutory Sick Pay to which the Executive may be
entitled, and any benefits received under any permanent health insurance
scheme which the Company may from time to time operate.
10.3 If the Executive's absence shall be occasioned by the actionable
negligence of a third party in respect of which damages are recoverable,
then all sums paid by the Company shall constitute loans to the
Executive, who shall:
10.3.1 forthwith notify the Company of all the relevant circumstances and of any
claim, compromise, settlement or judgment made or awarded in connection
therewith;
10.3.2 if the Company so requires, refund to the Company such sum as the Company
may determine, not exceeding the lesser of:
(a) the amount of damages recovered by him under such compromise,
settlement or judgment, and
(b) the sums advanced to him in respect of the period of incapacity.
11. PENSION AND MEDICAL INSURANCE ARRANGEMENTS
11.1 The Company shall continue to provide to the Executive the same level of
pension scheme benefits as under the terms of his previous arrangements
with the Group, together with such additional benefits as the Board may,
at its discretion grant to the Executive, subject to the terms and
conditions and trust deed of the pension scheme operated by the Company
from time to time. Further details of this benefit can be obtained from
the Director of Human Resources.
11.2 The Company shall continue to provide to the Executive the same level of
permanent health insurance and medical expenses insurance scheme benefits
as under the terms of his previous arrangements with the Group, together
with such additional such benefits as the Board may, at its discretion
grant to the Executive, subject to the terms and conditions of such
schemes from time to time in force.
5
11.3 The Company shall, at its discretion, effect insurance for the Executive
to cover his liability as a Director of the Company, at such levels and
on such terms as the Board (acting reasonably) shall consider
appropriate.
12. EMPLOYEE SHARE SCHEME RIGHTS
If during the Employment the Executive is granted participation in a
share scheme, any extinction, suspension or curtailment of any rights or
benefits under the share scheme by reason of any transfer of the
Employment or its termination, howsoever arising and whether lawful or
unlawful, shall not form part of any claim for damages for breach of this
Agreement or compensation for unfair dismissal and the effect of any such
transfer or termination of the Employment on the Executive's rights or
benefits under the share scheme shall be determined in accordance with
the rules, terms and conditions of the share scheme and not in accordance
with the provisions (other than this Clause) of this Agreement.
13. RESTRICTIONS ON OTHER ACTIVITIES BY THE EXECUTIVE
13.1 The Executive shall not in any capacity whatsoever (except with the prior
sanction of a resolution of the Board) be directly or indirectly
employed, engaged, concerned or interested in any other business, trade
profession, occupation or undertaking which is in competition with the
business of the Company, provided that this shall not prohibit the
holding (directly or through nominees) or interest for investment
purposes in securities in any company traded on the London Stock Exchange
or in respect of which dealing takes place on any recognised stock
exchange provided that such company is not in competition with the
business of the Company and further provided that not more than 5 per
cent of the issued shares or other securities of any class of any one
company shall be so held without the prior sanction of a resolution of
the Board.
13.2 The Executive shall comply with:
13.2.1 every rule of law;
13.2.2 the Rules and Regulations of the UK Listing Authority and the London
Stock Exchange; and
13.2.3 every regulation of the Company (which, where not being derived from
sub-clauses 13.2.1 and 13.2.2 above shall be reasonable) for the time
being in force notified to the Executive in writing
in relation to dealings in shares or other securities of the Company or
any Group Company.
13.3 The Executive shall not (and shall procure so far as he is able that his
spouse, infant children and other connected persons, within the meaning
of section 346 Companies ▇▇▇ ▇▇▇▇, shall not) deal or become or cease to
be interested (within the meaning set out in part I Schedule XIII
Companies Act 1985) in any securities of the Company, except in
accordance with the Company's code for securities transactions by
directors.
6
13.4 Subject to any regulations issued by the Company, the Executive shall not
be entitled to receive or obtain directly or indirectly any discount,
rebate or commission in respect of any sale or purchase of goods effected
or other business transacted (whether or not by him) by or on behalf of
the Company or any Group Company and if he (or any firm or company in
which he is interested) shall obtain any such discount, rebate or
commission he shall account to the Company or the relevant Group Company
for the amount received by him (or a due proportion of the amount
received by such company or firm having regard to the extent of his
interest therein).
14. CONFIDENTIAL INFORMATION AND COMPANY DOCUMENTS
14.1 The Executive shall neither during the Employment (except in the proper
performance of his duties) nor at any time (without limit) after the
termination of the Employment:
14.1.1 divulge or communicate to any person, company, business entity or other
organisation;
14.1.2 use for his own purposes or for any purposes other than those of the
Company or any Group Company; or
14.1.3 through any failure to exercise due care and diligence, cause any
unauthorised disclosure of
any trade secrets or Confidential Information (as hereinafter defined)
relating to the Company or any Group Company or their clients, but so
that these restrictions shall cease to apply to any information which
shall become available to the public generally otherwise than through the
default of the Executive.
14.2 "Confidential Information" shall mean details of suppliers and their
terms of business, details of customers and their requirements, the
prices charged to and terms of business with customers, marketing plans
and sales forecasts, financial information, results and forecasts (save
to the extent that these are included in published audited accounts), any
proposals relating to the acquisition or disposal of a company or
business or any part thereof or to any proposed expansion or contraction
of activities, details of employees and officers and of the remuneration
and other benefits paid to them, information relating to research
activities, inventions, secret processes, computer programmes, designs,
formulae and product lines, any information which the Executive is told
is confidential and any information which has been given to the Company
or any Group Company in confidence by customers, suppliers or other
persons.
14.3 All notes, memoranda, records, lists of customers and suppliers and
employees, correspondence, documents, computer and other discs and tapes,
data listings, codes, designs and drawings and other documents and
material whatsoever (whether made or created by the Executive or
otherwise) relating to the business of the Company or any Group Company
(and any copies of the same):
14.3.1 shall be and remain the property of the Company or the relevant Group
Company; and
7
14.3.2 shall be handed over by the Executive to the Company or to the relevant
Group Company on demand and in any event on the termination of the
Employment.
15. INVENTIONS AND OTHER INTELLECTUAL PROPERTY
15.1 The parties foresee that the Executive may make inventions or create
other industrial or intellectual property in the course of his duties
hereunder and agree that in this respect the Executive has a special
responsibility to further the interests of the Company and the Group
Companies.
15.2 Any invention, or improvement, design, process, information, copyright
work, trade ▇▇▇▇ or trade name or get-up made, created or discovered by
the Executive during the course of the Employment (whether capable of
being patented or registered or not and whether or not made or discovered
in the course of the Employment) in conjunction with or in any way
affecting or relating to the business of any company in the Group or
capable of being used or adapted for use therein or in connection
therewith shall forthwith be disclosed to the Company and shall (subject
to sections 39 to 43 Patents Act 1977) belong to and be the absolute
property of the Company or such Group Company as the Company may direct.
15.3 The Executive if and whenever required so to do by the Company shall at
the expense of the Company or such Group Company as the Company may
direct:
15.3.1 apply or join with the Company or such Group Company in applying for
letters patent or other protection or registration in the United Kingdom
and in any other part of the world for any such invention, improvement,
design, process, information, work, trade ▇▇▇▇, trade name or get-up
aforesaid; and
15.3.2 execute and do all instruments and things necessary for vesting the said
letters patent or other protection or registration when obtained and all
right title and interest to and in the same absolutely and as sole
beneficial owner in the Company or such Group Company or in such other
person as the Company may specify.
15.4 The Executive hereby irrevocably and unconditionally waives all rights
under Chapter IV Copyright, Designs and Patents ▇▇▇ ▇▇▇▇ in connection
with his authorship of any existing or future copyright work in the
course of the Employment, in whatever part of the world such rights may
be enforceable including, without limitation:
15.4.1 the right conferred by section 77 of that Act to be identified as the
author of any such work; and
15.4.2 the right conferred by section 80 of that Act not to have any such work
subjected to derogatory treatment.
15.5 The Executive hereby irrevocably appoints the Company to be his Attorney
in his name and on his behalf to execute and do any such instmment or
thing and generally to use his name for the purpose of giving to the
Company the full benefit of this clause. In favour of any third party a
certificate in writing signed by any Director or
8
by the Secretary of the Company that any instrument or act falls within
the authority hereby conferred shall be conclusive evidence that such is
the case.
15.6 Nothing in this clause shall be construed as restricting the rights of
the Executive or the Company under sections 39 to 43 Patents ▇▇▇ ▇▇▇▇.
16. TERMINATION
16.1 The Employment shall be subject to termination by the Company:
16.1.1 by not less than 3 months' notice in writing given at any time while the
Executive shall have been incapacitated by reason of ill health or
accident from performing his duties hereunder for a period of or periods
aggregating 120 working days in the preceding 12 months or period of
illness (if longer) provided that such termination does not prejudice
the Executives ability to continue to receive payments under any
permanent health insurance scheme implemented by the Company for the
benefit of the Executive. However, in such circumstances the Company
shall be entitled to require the Executive to resign from any office
held in the Company and/or Group Company and or may at its discretion
appoint another person to carry out the Executive's duties on a
temporary or permanent basis and if such appointment is made on a
permanent basis, the Company may terminate the Executive's employment
within 30 days of being informed of the cessation of payment being made
under the permanent health insurance scheme and, if the Executive's
employment is so terminated, the Executive shall have no further claim
against the Company under this Agreement in respect of notice pay or
otherwise;
16.1.2 by summary notice in writing if the Executive shall have:
(a) committed any serious breach or repeated or continued (after
warning) any material breach of his obligations hereunder; or
(b) in the reasonable opinion of the Board, been guilty of conduct
tending to bring himself or the Company or any Group Company
into disrepute; or
(c) committed any act of dishonesty, any serious misconduct or any
other act which may seriously affect his ability to discharge
his duties as Chief Executive Officer; or
(d) become bankrupt or had an interim order made against him under
the Insolvency ▇▇▇ ▇▇▇▇ or a disqualification order under the
Company Directors Disqualification ▇▇▇ ▇▇▇▇ or if the Executive
shall make any arrangement or composition with his creditors
generally; or
(e) become a patient for the purposes of Part VII of the Mental
Health ▇▇▇ ▇▇▇▇; or
(f) been convicted of any criminal offence (other than a minor
offence under the Road Traffic Acts for which a custodial
sentence is not imposed).
Any delay by the Company in exercising such right of termination shall
not constitute a waiver thereof. If the Employment is so terminated the
Executive shall have no claim for damages or otherwise against the
company in respect of such termination.
9
16.2 The Company may at any time, by written notice given by the Board,
suspend the Executive for up to one calendar month on full pay for the
purpose of investigating any misconduct or neglect alleged against the
Executive provided that the Board has reasonable grounds for suspecting
the Executive's involvement and during any such period the Executive
shall not, except with the consent in writing of the Board, attend at
any premises of the Company or any Group Company or contact or
communicate with any employee of the Company or any Group Company (other
than a director of the Company or any Group Company) or any customer,
client or supplier of the Company or any Group Company. The Company
agrees to use reasonable endeavours to conduct such an investigation as
quickly as possible.
16.3 The Company reserves the right to terminate the Employment at any time
with immediate effect;
16.3.1 by making a payment to the Executive of the Salary (at the rate in force
at the date of termination), Guaranteed Bonus and a sum equal to the
value of the Company's pension contributions; and
16.3.2 by continuing to provide any medical expenses insurance and permanent
health insurance schemes as the Company may operate from time to time,
or at the Company's option by paying to the executive compensation in
respect of the cost of providing any such schemes,
16.4 for the notice period, or (where notice has been given) for the balance
of the notice period. Any payment made pursuant to clause 16.3 above
shall be subject to deductions for tax and employee national insurance
and shall be in full and final satisfaction of all claims which the
Executive may have against the Company or any Group Company or any of
its or their officers or employees in respect of the termination of the
Employment.
16.5 For the avoidance of doubt, if the Employment is terminated pursuant to
clause 16.3 above, he shall not be entitled to any additional payment in
respect of holiday which would otherwise have accrued during such notice
period or the balance thereof.
16.6 Notwithstanding the foregoing or any other provision of this Agreement,
where the Company has given notice to the Executive pursuant to the
terms of clause 3.1 the Company shall not be under any obligation to
vest in or assign to the Executive any powers or duties and may at any
time require the Executive to perform:
16.6.1 all his normal duties;
16.6.2 a part only of his normal duties and no other;
16.6.3 such duties as it may reasonably require and no others (provided that
such duties will be commensurate with the Executive's status within the
Company as an executive director);
16.6.4 no duties whatsoever;
16.6.5 and may from time to time suspend or exclude the Executive from the
performance of his duties and/or from all or any premises of the Company
without the need to give
10
any reason for so doing and direct the Executive to refrain from
contacting or communicating with all or any of the employees, customers,
clients or suppliers of the Company and/or any Group Company for a
period of up to six months but his Salary will not cease to be payable
(in whole or in part) nor will he cease to be entitled to any other
benefits hereunder by reason only of such requirement as mentioned in
paragraphs 16.6.2 to 16.6.4 of this clause or such suspension or
exclusion (unless or until his employment under this Agreement shall be
terminated).
16.7 On the termination of the Employment (howsoever arising) or on either
the Company or the Executive having served notice of such termination,
the Executive shall:
16.7.1 at the request of the Company immediately resign without compensation
from his office as a director of the Company and from all offices held
by him in any Group Company, provided however that such resignation
shall be without prejudice to any claims which the Executive may have
against the Company or any Group Company arising out of the termination
of the Employment; and
16.7.2 forthwith deliver to the Company all materials within the scope of
clause 14.3 and all credit cards and other property of or relating to
the business of the Company or of any Group Company which may be in his
possession or under his power or control,
and if the Executive should fail to do so the Company is hereby
irrevocably authorised to appoint some person in his name and on his
behalf to sign any documents and do any things necessary or requisite to
give effect thereto.
16.8 If the Executive shall have been offered but shall unreasonably have
refused to agree to the transfer of this Agreement by way of novation to
a company which has acquired or agreed to acquire the whole or
substantially the whole of the undertaking and assets of or of the
equity share capital of the Company, the Executive shall have no claim
against the Company in respect of the termination of his employment
hereunder by reason of the subsequent voluntary winding-up of the
Company or of the disclaimer of this Agreement by the Company within one
month after such acquisition.
17. TERMINATION OF DIRECTORSHIP
17.1 If the Executive shall cease to be a director of the Company, the
Employment shall if the Company so elects in writing within fourteen
days of such cessation thereupon terminate automatically but without
prejudice to the right of either party to this Agreement to treat any
act or omission of the other causing such cessation as a breach of this
Agreement.
17.2 Termination of the Employment under this clause shall be without
prejudice to any claim for damages or other remedy in respect of any
breach of this Agreement and, for the purposes of this Clause, the
failure of the Company in general meeting to re-elect the Executive as a
director on his retirement by rotation shall be deemed to be an omission
of the Company.
18. RESTRICTIVE COVENANTS
11
18.1 For the purposes of clauses 18.2 and 18.3 the following words have the
following meanings:
18.1.1 "Company Goods" means any product researched into, developed,
distributed or sold by the Company with which the duties of the
Executive were concerned or for which he was responsible during the 2
years immediately preceding the Termination Date;
18.1.2 "Company Services" means any services (including but not limited to
technical and product support, technical advice and customer services)
supplied by the Company with which the duties of the Executive were
concerned or for which he was responsible during the 2 years immediately
preceding the Termination Date;
18.1.3 "Confidential Information" has the meaning ascribed thereto in clause
14.2;
18.1.4 "Customer" means any person, firm, company or other organisation
whatsoever to whom or which the Company distributed, sold or supplied
Company Goods or Company Services during the 2 years immediately
preceding the Termination Date and with whom or which, during such
period:
(a) the Executive had personal dealings in the course of his
employment; or
(b) any employee who was under the direct or indirect supervision of
the Executive had personal dealings in the course of his
employment;
18.1.5 "Prospective Customer" means any person, firm, company or other
organisation whatsoever with whom or which the Company shall have had
negotiations or discussions regarding the possible distribution, sale or
supply of Company Goods or Company Services during the 12 months
immediately preceding the Termination Date and with whom or which,
during such period:
(a) the Executive shall have had personal dealings in the course of
his employment by the Company; or
(b) any employee who was under the direct or indirect supervision of
the Executive shall have had personal dealings in the course of
his employment by the Company
18.1.6 "Restricted Area" means any other country in the world where, on the
Termination Date, the Company was engaged in the research into,
development, manufacture, distribution, sale or supply or otherwise
dealt with Company Goods or Company Services;
18.1.7 "Restricted Goods" means Company Goods or goods of a similar kind;
18.1.8 "Restricted Period" means the period of 12 months immediately following
the Termination Date, provided always that if no duties have been
assigned to the Executive by the Company during a period immediately
preceding the Termination Date in accordance with clause 16.6, it means
the period of 12 months immediately following the last date on which the
Executive carried out duties assigned to him by the Company.
12
18.1.9 "Restricted Services" means Company Services or services of a similar
kind;
18.1.10 "Termination Date" means the date of termination of the Employment.
18.2 The Executive hereby acknowledges that the Company's business is global,
being operated on the Internet (amongst other platforms). As such, it
can be carried out anywhere in the world. The Executive further
acknowledges that it is reasonable and necessary for the Restricted Area
to include the working or operating in any country of the world where
the Company is at the Termination Date or has been planning in the last
12 months prior to the Termination Date to be engaged in research into,
development, production, distribution, sale, supply or other dealings
with Company Goods or Company Services. The Executive also acknowledges
that the Company operates in a new and expanding market and by reason of
his appointment, the Executive will be engaged in specialist activities
which but for his employment, he might not have experienced. In so
doing, the Executive is aware and agrees that it is essential to protect
the legitimate business interests of the Company, given these
circumstances, that the following restrictions should apply.
18.3 The Executive hereby undertakes with the Company that he will not either
during the Employment nor during the Restricted Period without the prior
written consent of the Company whether by himself, through his employees
or agents or otherwise howsoever and whether on his own behalf or on
behalf of any other person, firm, company or other organisation,
directly or indirectly:
18.3.1 in competition with the Company within the Restricted Area, be employed
or engaged or otherwise interested in the business of researching into,
developing, distributing, selling, supplying or otherwise dealing with
Restricted Goods or Restricted Services;
18.3.2 in competition with the Company, solicit business from or canvas any
Customer or Prospective Customer if such solicitation or canvassing is
in respect of Restricted Goods or Restricted Services
18.3.3 in competition with the Company, accept orders for Restricted Goods or
Restricted Services from any Customer or Prospective Customer;
18.3.4 solicit or induce or endeavour to solicit or induce any person who on
the Termination Date was a director, manager, software designer salesman
or consultant of the Company with whom the Executive had dealings during
his employment to cease working for or providing services to the
Company, whether or not any such person would thereby commit a breach of
contract;
18.3.5 employ or otherwise engage in the business of researching into,
developing, distributing, selling, supplying or otherwise dealing with
Restricted Goods or Restricted Services any person who was during the 12
months preceding the Termination Date employed or otherwise engaged by
the Company and who was by reason of such employment or engagement is in
possession of any trade secrets or Confidential Information relating to
the business of the Company or who has acquired influence over its
customers and prospective customers (defined as in
13
clauses 18.1.4 and 18.1.5, but so that references to the Executive shall
be replaced by references to the relevant employee).
18.4 Clauses 18.2 and 18.3 shall also apply as though there were substituted
for references to the "Company" references to each Group Company in
relation to which the Executive has in the course of his duties for the
Company; or by reason of rendering services to or holding office in such
Group Company:
18.4.1 acquired knowledge of its trade secrets or Confidential Information; or
18.4.2 had personal dealings with its Customers or Prospective Customers; or
18.4.3 supervised directly or indirectly employees having personal dealings
with its Customers or Prospective Customers,
but so that references in clause 18.1 to the "Company" shall for this
purpose be deemed to be replaced by references to the relevant Group
Company. The obligations undertaken by the Executive pursuant to this
clause 18.4 shall, with respect to each such Group Company, constitute a
separate and distinct covenant and the invalidity or unenforceability of
any such covenant shall not affect the validity or unenforceability of
the covenants in favour of any other Group Company or the Company.
18.5 The Executive hereby undertakes with the Company that he will not at any
time:
18.5.1 during the continuance of the Employment or after the Termination Date
engage in any trade or business or be associated with any person, firm
or company engaged in any trade or business using the names Bright
Station or Smartlogik or incorporating the words Bright Station or
Smartlogik;
18.5.2 after the termination of the Employment in the course of carrying on any
trade or business, claim, represent or otherwise indicate any present
association with the Company or any Group Company or for the purpose of
carrying on or retaining any business or custom, claim, represent or
otherwise indicate any past association with the Company or any Group
Company to its detriment.
18.6 While the restrictions in this clause 18 (on which the Executive has had
the opportunity to take independent advice, as the Executive hereby
acknowledges) are considered by the parties to be reasonable in all the
circumstances, it is agreed that if any such restrictions, by
themselves, or taken together, shall be adjudged to go beyond what is
reasonable in all the circumstances for the protection of the legitimate
interests of the Company or a Group Company but would be adjudged
reasonable if part or parts of the wording thereof were deleted, the
relevant restriction or restrictions shall apply with such deletion(s)
as may be necessary to make it or them valid and effective.
19. PRESCRIBED INFORMATION
19.1 The following information is set forth for the purposes of section 3 of
the ERA:
14
19.1.1 If the Executive wishes to obtain redress of any grievance relating to
the Employment or is dissatisfied with any reprimand, suspension or
other disciplinary step taken by the Company, he shall apply in writing
to the Chairman of the Board, setting out the nature and details of any
such grievance dissatisfaction. The Chairman or (at the Chairman's
discretion) the Board will consider such grievance dissatisfaction, his
or their decision being final.
19.1.2 There are no disciplinary rules applicable to the Executive other than
those set out in this Agreement.
19.1.3 No collective agreement has any effect on the Executive's employment
hereunder and, except for visits in the ordinary course of business, the
Executive shall not be required to work outside the United Kingdom.
20. DATA PROTECTION
The Executive's personal data will be held by the Company in its
relevant manual and automated filing systems. The Executive hereby
consents to the processing and disclosure of such personal data
internally (including to any Group Company) in order for the Employment
to be performed and for decisions to be made regarding the Employment.
21. SEVERABILITY
The Company and the Executive acknowledge that the clauses and
sub-clauses of this Agreement are severable. If any clause, sub-clause
or identifiable part of any clause or sub-clause is held to be invalid
or unenforceable by any court of competent jurisdiction, then such
invalidity or unenforceability shall not affect the validity or
enforceability of the remaining clauses or sub-clauses or the
identifiable parts of such clauses or sub-clauses.
22. COUNTERPARTS
This Deed may be entered into in any number of counterparts and by the
parties to it on separate counterparts, each of which when so executed
and delivered shall be an original, but all the counterparts shall
together constitute one and the same agreement.
23. NOTICES
23.1 Any notice or other document to be given under this Agreement shall be
in writing and may be given personally to the Executive or to the
Secretary of the Company (as the case may be) or may be sent by first
class post or other fast postal service or by facsimile transmission to,
in the case of the Company, its registered office for the time being and
in the case of the Executive either to his address shown on the face
hereof or to his last known place of residence.
23.2 Any such notice shall be deemed served when in the ordinary course of
the means of transmission it would first be received by the addressee in
normal business hours.
15
24 CHOICE OF LAW AND SUBMISSION TO JURISDICTION
24.1 This agreement shall be governed by and interpreted in accordance with
English Law.
24.2 The parties hereby submit to the jurisdiction of the High Court of Justice
in England but this Agreement may be enforced by the Company in any court
of competent jurisdiction.
IN WITNESS Whereof this Agreement has been executed as a deed the day and year
first above written.
SIGNED as a deed by )
BRIGHT STATION PLC )
acting by: )
Director [ILLEGIBLE SIGNATURE]
Director/Secretary [ILLEGIBLE SIGNATURE]
SIGNED as a DEED by )
▇▇▇▇▇▇▇ ▇▇▇▇ ) [ILLEGIBLE SIGNATURE]
in the presence of: )
Signature [ILLEGIBLE SIGNATURE]
Witness name: ▇▇▇▇▇▇▇▇ ▇▇▇▇
Address: ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇ ▇▇▇
Occupation: ASSISTANT COMPANY SECRETARY