EXHIBIT 4.5
2000
SCOTTISH POWER plc
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
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CONTRACT OF SERVICE
as
EXECUTIVE DIRECTOR
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[LOGO OF FRESHFIELDS BRUCKHAUS ▇▇▇▇▇▇▇▇]
CONTRACT OF SERVICE entered into 2000
Between
(1) SCOTTISH POWER plc, incorporated under the Companies ▇▇▇ ▇▇▇▇ with number
SC193794 and having its Registered Office at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇
(the Company);
(2) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
Officer)
Whereby it is agreed as follows:
1. Definition and interpretation
(a) In this Contract, unless the context otherwise requires, words importing
the singular only shall include the plural and vice versa, words importing
natural persons shall include corporations and the following expressions
shall have the following meanings:
(i) the Board shall mean the Board of Directors of the Company;
(ii) Effective Date shall mean 1 October 2000;
(iii) the Employment shall mean the employment of the Officer under
this Contract;
(iv) the Group shall mean the Company and all of its Subsidiaries
and Subsidiary Undertakings;
(v) Scottish Power UK shall mean Scottish Power UK plc,
incorporated under the Companies ▇▇▇ ▇▇▇▇ with number SC 117120
and having its Registered Office at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇
▇▇▇;
(vi) Subsidiary shall mean a company which is a subsidiary (as that
term is defined by Section 736 of the Companies ▇▇▇ ▇▇▇▇ as
amended from time to time) of the Company;
(vii) Subsidiary Undertaking shall mean any undertaking which is a
subsidiary undertaking (as that term is defined by Section 258
of the Companies ▇▇▇ ▇▇▇▇ as amended by Section 21 of the
Companies ▇▇▇ ▇▇▇▇ and as amended from time to time hereafter)
of the Company; and
(viii) undertaking shall mean any undertaking (as that term is defined
in Section 259(1) of the Companies ▇▇▇ ▇▇▇▇ as amended by
Section 22 of the Companies ▇▇▇ ▇▇▇▇ and as amended from time
to time hereafter).
(b) The index and headings do not form part of this Contract and are for
reference only.
2. The employment
(a) Subject to the provisions of this Contract, the Company employs and
appoints the Officer and the Officer accepts employment and appointment as
Executive Director UK Power Operations. Subject to the provisions of Clause
4 of this Contract, the Officer shall be based, and his duties shall
primarily be carried out, in Scotland.
(b) The Officer may be required to act as a director (either executive or non-
executive) of any Subsidiary or Subsidiary Undertaking as the Board may
from time to time reasonably require and intimate to the Officer in writing
in addition to the appointment specified in Clause 2(a) under reservation
to the Company of the right at any time and from time to time on giving
notice in writing to the Officer to cancel such engagement in respect of
such one or more of such other companies as shall be specified in such
notice and from such date as may be stated therein, which notice shall take
effect always subject to all commitments and obligations in respect of such
engagements.
3. Duration of the employment
(a) The Employment will commence on the Effective Date and will continue
thereafter unless and until terminated by the Company giving to the Officer
written notice of not less than 2 years. Notwithstanding the provisions of
this Clause, the Employment may be terminated at any time by the Officer
giving to the Company not less than twelve months notice. For the avoidance
of doubt and notwithstanding the foregoing provisions of this Clause it is
expressly agreed between the parties hereto that the Employment shall
terminate without notice on the retirement date specified in Clause 9(b)
below unless otherwise agreed with the Board.
(b) The Officer's period of continuous employment for the purposes of the
Employment Rights ▇▇▇ ▇▇▇▇ commenced on 17 September 1990.
(c) The Company shall be entitled at its sole discretion to make a payment to
the Officer in lieu of notice. The Company shall be entitled to make such
deductions from such payment as is required or permitted by law in respect
of income tax and national insurance contributions.
4. Duties of the officer
During the Employment the Officer shall:
(a) undertake and carry out to the best of his ability such duties and exercise
such powers in relation to the Group's respective businesses as may from
time to time be assigned to or vested in him by the Board;
(b) in the discharge of such duties and in the exercise of such powers observe,
obey and comply with all lawful resolutions, regulations and directions
from time to time made or given by or under the authority of the Board and
promptly, whenever required so to do, give a full account to the Board or a
person duly authorised by the Board of all matters with which he is
entrusted;
(c) (unless prevented by ill-health, accident, holidays or other unavoidable
cause) devote the whole of his time, attention and skill to the discharge
of his duties hereunder;
(d) whenever so required for the proper fulfilment of his duties, work without
additional remuneration in excess of the normal hours of work of the
Company which are 37 hours per week;
(e) carry out his duties in a proper and efficient manner, faithfully and
diligently serve the Company and at all times use his best endeavours to
promote the interests of the Group;
(f) visit any premises of the Group wheresoever situated and travel within the
United Kingdom and abroad as may reasonably be required for the proper
fulfilment of his duties; and
(g) in pursuance of his duties hereunder perform such services for and accept
such office in any Subsidiary or Subsidiary Undertaking as the Board may
from time to time reasonably require in accordance with Clause 2(b) hereof.
5. Remuneration
(a) The Company shall pay to the Officer as remuneration for his services
during the Employment a salary at such rate, being not less than
(Pounds)270,000 per annum, as may from time to time be determined by the
Board with effect from 1 December 1999. The said salary (which shall be
exclusive of any bonus due in terms of the incentive bonus schemes
hereinafter referred to) shall accrue from day to day and be payable by
equal monthly instalments in arrears. The said salary shall be inclusive of
all Directors' fees (if any) to which the Officer may be entitled as a
director of the Company and all remuneration which may become payable to
the Officer by or in respect of services rendered by him to any Subsidiary
or Subsidiary Undertaking.
(b) The rate of such salary shall be reviewed with effect from 1 April 2001 and
annually thereafter or upon such other date as may be agreed between the
parties during the continuance of the Employment. The revised rate of
salary shall be fixed by the Board but shall not be less than the rate of
salary applying immediately prior to the date of the review.
6. Expenses
The Company shall reimburse to the Officer (against receipts or other
appropriate evidence) the amount of all out-of-pocket expenses reasonably and
properly incurred by him on its behalf in connection with the discharge of his
duties under this Contract (including, without prejudice to the generality, the
cost of subscriptions to any professional bodies to which, for the purpose of
the Employment, the Officer is
obliged, or which the Board considers it is desirable for him, to belong in
order to maintain his professional qualifications).
7. Bonus schemes
The Company has established incentive bonus schemes and, subject to the rules of
such schemes, the Officer shall be eligible to participate therein. The Company
reserves the right to amend or procure the amendment of the terms of or to
terminate or procure the termination of such schemes and to alter the level of
the Officer's participation therein without reference to or agreement from him.
8. Motor car
The Company shall provide or procure the provision to the Officer during the
Employment and for the purposes thereof with a motor car deemed by the Company
to be appropriate to the status of the Employment and shall be responsible for
payment of the whole expenses of maintaining and running such motor car
including insurance, petrol and maintenance. The Officer shall be entitled to
make reasonable use of the said motor car for private purposes but shall not
take, or allow to be taken, the said motor car outside the United Kingdom
without the prior written consent of the Company.
9. Pension scheme
(a) The Officer may join any appropriate pension scheme established by the
Company and Scottish Power UK (the Scheme) subject to and in accordance
with the rules of the Scheme for the time being and from time to time in
force.
(b) Without prejudice to any provisions of the Scheme the Officer's retirement
date under this Contract shall be 22 March 2005 (age 63).
(c) If either:
(i) the Officer does not join the Scheme as soon as reasonably
practicable and, in any event, within three months of the date
of commencement of this Contract, or such longer period as the
Scheme may permit,
or
(ii) within three months of the date of commencement of this
Contract the Officer takes out a personal pension scheme
approved under Section 631 of the Income and Corporation Taxes
▇▇▇ ▇▇▇▇,
or
(iii) once having joined the Scheme the Officer ceases to be a member
thereof while remaining in the Employment at any age under the
normal retirement date referred to in Clause 9(b)
then the Company shall not (subject, in respect of sub-paragraph (iii)
above, to the Scheme trustees securing, to the extent required by law and
the Scheme rules, any accrued benefits outside the Scheme) be obliged to
maintain the Scheme or any other pension scheme for the benefit of the
Officer and if the Company does maintain the Scheme or brings into effect
another pension scheme it shall be within the discretion of the Company and
the trustees of the Scheme or other scheme as to whether or not, and if so
upon what terms, the Officer shall be permitted to become a member.
(d) For so long as the Officer shall remain a member of the Scheme he shall be
liable to make such contributions thereto and be entitled to such benefits
therefrom and be subject to such terms and conditions as are set out in the
rules from time to time governing the Scheme.
(e) The Company has elected to contract out of the State Earnings Related
Pension Scheme and a contracting-out certificate issued in accordance with
the Social Security Pensions Act 1975 is in force in respect of the
Employment, provided the Officer becomes and remains a member of the
Scheme.
10. Health insurance
The Officer shall become, and for as long as he is employed by the Company,
remain a member of the Group's private health insurance scheme particulars of
which have been given to the Officer. The benefit of membership shall extend to
the spouse and children (in accordance with the terms of the scheme) of the
Officer.
11. Share option schemes
The Company has established share option schemes and, subject to the rules of
such schemes, the Officer shall be eligible to participate in these schemes. The
Officer hereby agrees and accepts that the grant of any option or other right
pursuant to such schemes or the termination or variation of such schemes shall
not constitute or give rise to any claim or right of action against the Company
under this Contract in respect of such grant, termination or variation.
12. Absence
(a) In respect of any absence from the Employment due to sickness or injury
lasting more than 3 days but less than 8 days the Officer shall send to the
Board or to such person as it shall nominate a self certification form, in
such form as the Company may reasonably require. In respect of any absence
exceeding 7 days, he shall send to the Board or to such person aforesaid a
statement of his disability signed by a medical practitioner covering such
absence after the seventh day.
(b) Subject to the terms of sub-clause 12(c), during any period of absence from
work due to sickness or injury, provided the Officer complies with the
terms of sub-clause 12(a) above:
(i) the salary payable to the Officer under the terms of this
Contract shall be paid at the full basic rate for the first six
months of continuous absence (or such greater periods as the
Board shall in its absolute discretion determine) and in
respect of the following six months continuous absence (or such
greater periods as the Board shall in its absolute discretion
determine) the Officer shall be paid at half the full basic
rate or at such greater rate as the Board shall, in its
absolute discretion, determine. Thereafter no salary shall be
payable; and
(ii) all benefits enjoyed by the Officer during the Employment shall
continue for the aggregate twelve months of continuous absence,
but shall thereafter cease.
(c) The provisions of sub-clause 12(b) and the other provisions of this
Contract are subject to the following:
(i) the Board shall in its absolute discretion (but acting fairly
and reasonably) determine (1) if the Officer has been absent
through sickness or injury during any period of twelve months
prior to a period of absence to which sub-clause 12(b) relates,
whether or not salary shall be paid pursuant to the provisions
of sub-clause 12(b) for a number of days equal to the days for
which salary was paid during sickness or injury during the
relevant twelve months period; (2) if the Officer is absent
through sickness or injury for a period of more than twelve
months (or such greater period or periods as the Board may
determine pursuant to sub-clause (b) above), whether or not any
salary shall be paid for any period greater than the initial
twelve months absence; and (3) if the Officer is absent through
a reason other than sickness or injury, whether or not any
salary shall be paid during such absence; and
(ii) if the sickness or injury shall be or appear to be occasioned
by actionable negligence of a third party in respect of which
damages are or may be recoverable any salary paid to the
Officer during his period of absence shall be repayable in the
event of, and out of, the receipt of the proceeds of any claim
against the third party; the Officer shall immediately notify
the Company of the reason for the sickness or injury and of any
claim, compromise, settlement or judgment made or awarded in
connection with it and shall give to the Company all
particulars the Company may reasonably require and shall repay
to it that part of any damages or compensation recovered
relating to loss of earnings for the period of absence as shall
equal the amount of salary paid to the Officer during the
period of absence provided that the amount to be refunded shall
not exceed the amount of damages or compensation recovered less
any costs incurred by the Officer in connection with the
recovery of such damages or compensation and shall not exceed
the total remuneration paid to the Officer by way of salary in
respect of the period of absence.
(d) The foregoing provisions of sub-clauses 12(a) to (c) are without prejudice
to the Officer's entitlement to Statutory Sick Pay (SSP) in accordance with
the Social Security and Housing Benefits ▇▇▇ ▇▇▇▇ provided that any payment
made under this Contract in respect of a day of sickness will count towards
the Officer's SSP payment for that day and any sickness or other benefits
obtained by the Officer under any social security, national insurance or
other legislation from time to time in force or any benefit received by him
from any insurance policy effected by the Company for his benefit in the
event of incapacity in respect of a day of sickness will count towards the
payment to be made under this Contract in respect of that day. Monday to
Friday (inclusive) in each week shall be Qualifying Days for the purposes
of the said Act.
(e) The Officer shall submit to such medical examinations as may reasonably be
required by the Board from time to time by a medical practitioner selected
by the Board. The Officer hereby authorises and gives consent to, for the
purposes of Section 3 of the Access to Medical Reports ▇▇▇ ▇▇▇▇, the
medical practitioner to disclose the results of such examination to the
Board and his own medical practitioner to disclose to the Board such
relevant medical information as the Board may reasonably require provided
that the Officer is given prior notice of such request being made. Copies
of any reports made and information provided to the Board by such medical
practitioners shall be made available to the Officer. The fees and expenses
incurred in the provision of such medical examination and obtaining of such
medical information shall be borne by the Company.
13. Holidays
(a) The Officer shall be entitled, in addition to all statutory and public
holidays, to thirty (30) days holidays in each calendar year at such time
or times as may from time to time be agreed between the Board and the
Officer.
(b) Such holiday entitlement shall be deemed to accrue from day to day and may
not be carried over from one calendar year to the next unless the Board
shall, in its absolute discretion, otherwise determine. The Officer shall
not be entitled to receive holiday pay in respect of any holidays accrued
but not taken by him save on the termination of the Employment (other than
termination pursuant to Clause 19) when he shall be entitled to receive
holiday pay in respect of holidays accrued in the calendar year in which
the Employment terminates but not taken at the date of such termination.
14. Other interests
(a) The Officer shall disclose to the Board any interest of his own (or that of
his spouse or of any child of him or his spouse under eighteen years of age
in so far as he is able to do so) (1) in any trade, business or occupation
whatsoever which is in any way similar to any of those in which the Group
or any member thereof is involved and (2) in any trade or business carried
on by any supplier
or customer of the Group or any member thereof whether or not such trade,
business or occupation may be conducted for profit or gain.
(b) During the Employment the Officer shall not at any time, without the prior
consent of the Board, either solely or jointly or in partnership or
association with or as director, manager, consultant, agent, employee,
servant or representative of or for any other person, firm, company or
other undertaking directly or indirectly carry on or be engaged or
concerned or interested in any business other than the business or
businesses carried on within the Group or be engaged or concerned or
interested in any way in any company, firm or other undertaking provided
that nothing contained in this Clause shall preclude the Officer from
holding any shares, securities, or loan capital (not exceeding three per
centum of the shares or loan capital of the class concerned for the time
being issued) in any company whose shares are listed or dealt in on a
recognised Stock Exchange (provided always that if such company is a direct
business competitor of the Group or any member thereof the Officer shall
obtain the prior consent of the Board to the acquisition or variation of
such holding).
15. Confidentiality
During the Employment and after the termination thereof (howsoever arising) the
Officer shall not, except in the performance of his duties hereunder or unless
ordered to do so by a court of competent jurisdiction, use for his own or
another's advantage or divulge to any person, firm, company or organisation and
shall use his best endeavours to prevent the publication or disclosure of any
information which the Officer knows or ought reasonably to have known to be of a
confidential nature concerning the business, transactions, secrets or affairs of
the Group or any member thereof or any of its or their customers.
16. Intellectual property rights
(a) For the purpose of the interpretation of this Clause 16 the following
expressions shall have the following meanings:
Intellectual Property Materials shall mean inventions, discoveries,
processes, copyright works, designs, semi-conductor chip topography,
drawings, computer programs and codes, engineering and other forms of
data, feasibility studies, specifications, plans and all other
technical and other information, texts, records, operating and testing
procedures, instruction manuals, bills of materials, formulae, tables
of operating conditions and management, administrative and financial
materials and systems, in respect of which, in all cases, Intellectual
Property Rights subsist (or are capable of subsisting subject to the
making of the appropriate application or registration) and all other
similar or analogous items;
Intellectual Property Rights shall mean patents, applications for
patents, trade marks or trading names (whether or not registered),
know-how, United Kingdom and foreign designs (registered or
unregistered and including applications for registered designs),
copyrights (including rights in computer software), topography rights
and other rights in semi-conductor chips, moral rights and all rights
having equivalent or similar effect wheresoever situated.
(b) All Intellectual Property Materials made, created, discovered, conceived,
written, designed or originated by the Officer, whether alone or in
conjunction with any other person, in the course of the Employment and in
connection with or in any way affecting or relating to the business of the
Company or any other undertaking within the Group or in any way, directly
or indirectly, capable of being used or modified for use therein or in
connection therewith shall be disclosed forthwith to the Company (together,
where relevant, with all information and data in his possession as to the
exact mode of working, producing and using the same) and such Intellectual
Property Materials, and all Intellectual Property Rights relative thereto,
upon their creation, discovery, conception, drafting, design or origination
belong to and vest in the Company absolutely and beneficially together with
all rights to apply for the Intellectual Property Rights where necessary.
(c) The Officer shall if and when required to do so by the Company at the
Company's expense do all things necessary to vest all such Intellectual
Property Rights absolutely in the Company or its nominees as legal and
beneficial owner and to secure, preserve and enforce all appropriate forms
of protection therefor in any part of the world. For the purpose of this
sub-clause 16(c) the Officer hereby irrevocably appoints the Company or its
nominee to be his attorney to execute and do in his name, or in the name of
the Company all documents, acts or things as the Officer has agreed to
execute and do.
17. Grievances and discipline
(a) If the Officer wishes to obtain redress of any grievance relating to his
employment he should apply in writing to the Chairman of the Board setting
out the nature and details of any such grievance. If the matter is not
then resolved the Officer shall present his grievance to the full Board in
writing who will grant the Officer the opportunity of a hearing within a
reasonable time. The decision of the Board on such grievance shall be final
and binding on the Officer and the Company. Likewise, if the Board,
Chairman or Chief Executive shall be dissatisfied with the conduct of the
Officer and such conduct is not such as to entitle the Company to apply the
provisions of Clause 19 hereof, written details of such dissatisfaction
shall be given to the Officer and the provisions of this clause shall apply
mutatis mutandis.
(b) The Officer shall be notified by the Board of any disciplinary rules and
code of conduct of the Company applicable to the Officer.
18. Share dealings
During the Employment and for so long as the ordinary shares, or any of them, in
the capital of the Company are listed on the Official List of the London Stock
Exchange, the Officer shall (and shall procure, so far as he is able to do so,
that any person with whom he is connected, as that term is defined in Section
346 of the Companies Act 1985) comply with the rules adopted by the Company
governing dealings by directors in the shares of the Company.
19. Termination and suspension
(a) Notwithstanding the provisions of Clause 3 hereof the Company shall be
entitled, but not bound, to terminate with immediate effect, or on the
expiry of such period of notice as the Company may consider appropriate,
the Employment by giving to the Officer notice in writing to that effect at
any time after the happening of any one or more of the following events,
namely:
(i) if the Officer commits any serious breach of this Contract, or
(through his own fault, and having received notification from
the Board requiring the same to be remedied) commits a
persistent breach of this contract, whether serious or not;
(ii) if he resigns as a director of any Subsidiary or of any
Subsidiary Undertaking without the consent of the Board (which
consent shall not be unreasonably withheld);
(iii) if he becomes prohibited by law from being a director of a
company or if he is convicted of any criminal offence; or
(iv) if he becomes insolvent or bankrupt or compounds with or
grants a trust deed for the benefit of his creditors;
(v) if he is prevented by reason of sickness or injury or (in the
opinion of the Board acting fairly and reasonably) some other
reason beyond his control from attending to his duties for
such period or aggregate periods as the Board determines to be
appropriate;
(vi) if he becomes of unsound mind;
(vii) if he commits any gross default or misconduct or if his
behaviour is such as may reasonably be regarded as materially
prejudicial to the interests of the Group or any member
thereof; or
(viii) if (through his own fault, and having received notification
from the Board requiring the same to be remedied) he fails to
perform his duties to the standard considered by the Board to
be required;
provided that where it is intended by the Company to take action under
paragraphs (v) - (viii) above, the Company shall first notify details of
the
circumstances in writing to the Officer and the Officer shall be afforded
an opportunity (upon reasonable notice, having regard to the circumstances)
to make any representation to the Board. The decision of the Board in
relation to all such matters shall be final and binding on the Officer and
the Company.
(b) If the Officer resigns as a director of the Company, the Company shall, in
its absolute discretion, either:
(i) deem the Officer to have given notice of termination of the
Employment in accordance with Clause 3(a) hereof as at the
date of his resignation as a director (the Officer hereby
agreeing to serve the Company as a senior executive rather
than Executive Director during his notice period) and the
Employment shall terminate twelve months after that date; or
(ii) agree that the Employment should continue, which agreement may
be subject to such terms and conditions as the Company may
determine (the Officer hereby agreeing to serve the Company as
a senior executive rather than Executive Director during the
continuance of the contract); or
(iii) terminate this Contract with immediate effect without
compensation for loss of office or otherwise.
(c) In the event of the Employment being terminated in accordance with Clause
19(a) or 19(b) above, such termination shall not constitute breach of this
Contract and, for the avoidance of doubt, such termination shall be without
prejudice to the continuing obligations of the Officer under this Contract.
(d) The Board shall be entitled at any time to require the Officer not to
attend at any place of work or otherwise suspend the Officer from the
performance of his duties under this Contract whether in respect of the
Company or any other member of the Group including at any time when notice
of termination (1) has been given by either the Company or the Officer in
terms of Clause 3(a) hereof or (2) is deemed to have been given by the
Officer in terms of Clause 19(b) hereof.
20. Events upon termination
(a) Upon the termination of the Employment in terms of Clause 3, Clause 19 or
otherwise, the Officer shall (1) deliver forthwith to the Company all
Intellectual Property Materials and all other materials and property
including letters, documents, files, films, records, reports, plans and
papers and all copies thereof used in or relating to the business of any
member of the Group as are in the possession of or under the control of the
Officer and (2) return forthwith to the Company any motor car provided by
the Company to the Officer in terms of Clause 8 above together with all
keys thereto and all documentation relevant thereto.
(b) Upon the termination of the Employment in terms of Clause 3, Clause 19 or
otherwise or if the Officer shall cease for any reason to be a director of
the Company the Officer shall upon the request of the Board at any time or
from time to time thereafter tender his written resignation without claim
for compensation from office as a director of the Company and all offices
held by him in the Group or otherwise by virtue of his employment under
this Contract and should he fail to do so the Company is hereby irrevocably
authorised to appoint some person in his name and on his behalf to sign any
documents or do all things necessary or requisite to give effect thereto.
21. Restrictions after termination
(a) In this Clause 21 the following expressions shall have the following
meanings:
Confidential Information shall mean trade secrets and
confidential information which are for the time being
confidential to the Company or any other member of the Group;
Prohibited Area means Scotland, England, Wales, Northern
Ireland and the Isle of Man;
Relevant Group Member means any member of the Group (excluding
the Company but including any predecessor of a member of the
Group) in respect of whose business the Officer has been
directly concerned pursuant to the provisions of this Contract
at any time during the period of 2 years prior to the
Termination Date;
Restricted Period means the period of 12 months commencing
with the Termination Date;
Termination Date means the date on which the Employment shall
terminate.
(b) Since the Officer is likely to obtain in the course of his duties under
this Contract Confidential Information and personal knowledge of and
influence over suppliers, customers and employees of members of the Group
the Officer hereby agrees with the Company that in addition to the other
terms of this Contract and without prejudice to other restrictions imposed
upon him by law, he will be bound by the covenants contained in sub-clauses
21(c) to 21(j).
(c) The Officer hereby undertakes that he will not, unless with the prior
written consent of the Company, during the Restricted Period and within the
Prohibited Area on his own behalf or for any other person, firm, company or
other undertaking (whether as employee, consultant adviser, director, agent
or otherwise) directly or indirectly be engaged in or concerned with any
trade or business which competes with any trade or business carried on at
the Termination Date by the Company or any other Relevant Group Member:
(i) where such trade or business is conducted by either a holder
of a Composite Licence or a Generation Licence or a
Transmission Licence or a Public Electricity Supply Licence or
a Private Electricity ("Second Tier") Supply Licence granted
under the Electricity Act 1989); or
(ii) where such trade or business involves any other activity
conducted by the Company or any Relevant Group Member,
and in which trade or business the Officer has been involved in or
concerned with as part of the Employment.
provided that the provisions of this sub-clause 21(c) shall not restrict
the Officer (including his spouse and children of him or his spouse under
eighteen years of age) from holding or acquiring by way of bona fide
investment only investments whether or not listed or quoted representing
not more than three per cent of the issued investments of any class of any
one company and shall not restrict any activity the performance of which
could not involve the Officer in such competition.
(d) The Officer hereby undertakes that he will not during the Restricted Period
and within the Prohibited Area directly or indirectly canvass, deal,
solicit or interfere with or endeavour to canvass, deal, solicit or
interfere with, either on his own behalf or for any other person, firm,
company or other undertaking in competition with the Company or any
Relevant Group Member the custom of any person, firm, company or other
undertaking who at any time during the last twenty-four (24) months of his
service with the Company was a customer of, or in the habit of dealing
with, the Company or (as the case may be) any Relevant Group Member and
with whom the Officer shall have been personally concerned or have had
personal knowledge as part of the Employment so as to harm the goodwill of
the Company or any Relevant Group Member or so as to compete with the
Company or any Relevant Group Member.
(e) The Officer hereby undertakes that he will not during the Restricted Period
and within the Prohibited Area either on his own behalf or for any other
person, firm, company or other undertaking directly or indirectly solicit
or entice or endeavour to solicit or entice away from the Company or any
Relevant Group Member any person who is to his knowledge a senior employee,
director, officer, agent, consultant or associate of such company at the
Termination Date and at any time within a period of six months prior to
that date and with whom the Officer has worked or with whom he has had
personal contact as part of the Employment.
(f) The Officer hereby undertakes that he shall not following the Termination
Date represent himself as being in any way connected with the business of
the Company or that of any Relevant Group Member (except to the extent
agreed by the Company or, as the case may be, such Relevant Group Member).
(g) The Officer agrees that each of the provisions contained in sub-clauses
21(c) to 21(f) constitute an entirely separate and independent covenant on
his part and the validity of one sub-clause shall not be affected by the
validity or unenforceability of another.
(h) The Officer agrees that he will at the request and cost of the Company
enter into a direct agreement or undertaking with any Relevant Group Member
whereby he will accept restrictions and provisions corresponding to the
restrictions and provisions above (or such of them as may be reasonable and
appropriate in the circumstances) in relation to such activities and such
areas and for such a period as such Relevant Group Member may reasonably
require for the protection of its legitimate interests.
(i) While the restrictions imposed in this Clause 21 are considered by the
parties to be reasonable in all the circumstances it is agreed that if any
one or more of such restrictions shall either taken by itself or themselves
together be adjudged by a court of competent jurisdiction to go beyond what
is enforceable in all the circumstances for the protection of the Company's
or any Relevant Group Member's legitimate interest but would be so judged
enforceable if any particular restriction or restrictions were deleted or
if any part or part of the wording thereof were deleted, then the said
restrictions shall apply with such deletions.
(j) The Officer agrees that having regard to the facts and matters set out
above the restrictive covenants contained in this Clause 21 are not only
reasonable but are also necessary for the protection of the business and
Confidential Information of the Company and Relevant Group Members and he
further agrees that having regard to those circumstances those covenants do
not work harshly upon him.
22. Enforceability
In the event of any Clause or part thereof contained in this Contract being
declared invalid or unenforceable by any court of competent jurisdiction all
other Clauses or parts thereof shall remain in full force and effect and shall
not be affected thereby.
23. reconstructions and amalgamations
If the Company shall undergo any process of reconstruction or amalgamation
(whether or not involving the liquidation of the Company) and the Officer shall
be offered employment by the successor or proposed successor to the Company or
any other member of the Group on terms no less favourable overall to those under
this Contract whether as to duties, responsibilities, remuneration or otherwise
and the Officer does not accept such offer within one month, then the Company
may terminate this Contract forthwith and, in such event, the Officer shall have
no claim for compensation against the Company in respect of such termination
(save as provided under the provisions of the Employment Protection
(Consolidation) Act 1978).
24. Notices
Any notice hereunder shall be given by either party to the other by personal
delivery or by recorded delivery first class mail at, in the case of the
Company, its registered office for the time being and, in the case of the
Officer, his address last known to the Company. Any such notice shall in the
case of personal delivery be deemed to have been served at the time of delivery
and in the case of posting at the expiration of 48 hours after it has been
placed in the post and in proving such service by post it shall be sufficient to
prove that the envelope containing the same was properly addressed and mailed as
a pre-paid recorded delivery first class letter.
25. Assignation
This Contract shall not be assignable by the Company or the Officer.
26. Entire agreement
This Contract takes effect in substitution for all previous agreements and
arrangements (whether written, oral or implied) between the Company and the
Officer or Scottish Power UK and the Officer relating to his employment. Any
such previous agreements shall be deemed to have been terminated by mutual
consent and without liability to either party as from the date of commencement
of the Employment. The preceding provisions of this Clause shall not apply in
respect of any retirement benefits as may have been provided to or for the
Officer and/or his dependants, all of which shall be reserved to him and/or
them.
27. Continuing effect
The expiration or determination of the Employment, howsoever arising, shall not
operate to affect such of the provisions of the Contract as in accordance with
their terms are expressed to operate or have effect thereafter.
28. Waiver
No waiver of any terms or conditions of this Contract shall be effective unless
made in writing and signed by the party against which enforcement of the waiver
is sought. A waiver of any breach of any terms or conditions of this Contract
shall not be construed as a waiver of any subsequent breach of condition whether
of the same or different nature.
29. Governing law
This Contract shall be interpreted and receive effect in accordance with the law
of Scotland.
In witness whereof these presents consisting of this and the preceding seventeen
pages are executed as follows:
SUBSCRIBED for and on behalf of )
SCOTTISH POWER plc at 1 Atlantic Quay, )
Glasgow on the day of )
Two Thousand by ) ............................
and )
) ............................
being respectively a Director and the )
Secretary duly authorised to )
subscribe this document on behalf of )
SCOTTISH POWER plc )
SIGNED by the said )
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ )
at )
on the day of )
Two Thousand in the presence of )
Witness ..............................
Address ..............................
..............................
..............................
Occupation ...........................
Witness ..............................
Address ..............................
.............................
.............................
Occupation............................