EXHIBIT 10.11
DATED 2001
APOLLO LEISURE (UK) LIMITED
and
▇▇▇▇ ▇▇▇▇▇▇▇▇
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CONTRACT OF SERVICE
(EXECUTIVE SERVICE AGREEMENT)
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CONTENTS
PAGE NO
1. DEFINITIONS AND INTERPRETATION....................................... 2
2. COMMENCEMENT......................................................... 3
3. CAPACITY. ........................................................... 4
4. DURATION............................................................. 4
5. DUTIES............................................................... 4
6. WORKING TIME......................................................... 5
7. OTHER INTERESTS...................................................... 5
8. REMUNERATION......................................................... 6
9. EXPENSES............................................................. 6
10. PENSION AND INSURANCE................................................ 7
11. STOCK OPTION SCHEME.................................................. 7
12. HOLIDAYS............................................................. 8
13. INCAPACITY........................................................... 8
14. SUMMARY TERMINATION.................................................. 9
15. TRANSFER OF UNDERTAKING.............................................. 10
16. DUTIES ON TERMINATION................................................ 10
17. CONFIDENTIAL INFORMATION............................................. 10
18. DATA PROTECTION...................................................... 11
19. POST-EMPLOYMENT RESTRICTIONS......................................... 11
20. INTELLECTUAL PROPERTY................................................ 13
21. PRESCRIBED INFORMATION............................................... 14
22. SEVERABILITY......................................................... 14
23. COUNTERPARTS......................................................... 14
24. GOVERNING LAW AND JURISDICTION....................:.....:............ 14
25. NOTICES.............................................................. 14
THIS AGREEMENT IS MADE THE DAY OF 2001
BETWEEN:
(1) APOLLO LEISURE (UK) LIMITED whose registered office of ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ registered in England with registered
number 1444368 (the "COMPANY"); and
(2) ▇▇▇▇ ▇▇▇▇▇▇▇▇ OF ▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ (The
"EXECUTIVE").
RECITALS:
(A) The Executive was appointed as Finance Director of the Company on a
date to be confirmed.
THIS AGREEMENT PROVIDES:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement the following expressions, unless otherwise expressly
stated, have the following respective meanings:
1.1.1 "ERA" means the Employment Rights ▇▇▇ ▇▇▇▇, as amended;
1.1.2 "BOARD" means the management committee for the time being of the
Company;
1.1.3 "BONUS" means the bonus referred to in Clause 8.4;
1.1.4 "COMMENCEMENT DATE" means a date to be confirmed
1.1.5 "EMPLOYMENT" means the employment of the Executive under this
Agreement;
1.1.6 "GROUP" means the Company, any holding company or companies for the
time being of the Company and any subsidiary or subsidiaries for the
time being of the Company or of any such holding company or companies.
"HOLDING COMPANY" and "SUBSIDIARY" have the meanings assigned to them
respectively by section 736 of the Companies ▇▇▇ ▇▇▇▇ as amended by
the Companies ▇▇▇ ▇▇▇▇. The expressions "Group Company" and "Group
Companies" shall be construed accordingly;
1.1.7 "INCAPACITY" means sickness or injury rendering the Executive incapable
of performing services in accordance with the provisions of this
Agreement;
1.1.8 "INTELLECTUAL PROPERTY RIGHTS" means any right conferred by English law
in respect of any patent, registered design, design right, copyright,
trade ▇▇▇▇, plant breeder's right and semi-conductor product right
together with any analogous right conferred by the law of any country
other than England;
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1.1.9 "OWN PROPERTY" means Property which at any time during the Employment
the Executive alone or jointly with others might conceive, create,
devise, produce, discover or formulate either during working hours or
in the normal course of his duties or in the course of duties falling
outside his normal duties but specifically assigned to him or with the
Company's materials and/or facilities which relate to the Company's
business or in which the Company is interested;
1.1.10 "PROPERTY" means any idea, invention, modification, improvement,
process, formula, material, know-how, design, model, prototype, ▇▇▇▇,
sketch, drawing, plan or other matter;
1.1.11 "RECOGNISED INVESTMENT EXCHANGE" means a body which is a recognised
investment exchange for the purposes of the Financial Services ▇▇▇
▇▇▇▇;
1.1.12 "SALARY" means salary paid pursuant to Clause 8.1, as reviewed from
time to time;
1.1.13 "STOCK OPTION SCHEME" means any share option or share incentive scheme
which may be established from time to time by the Company or by any
holding company of the Company and extending to the employees of the
Company;
1.1.14 "PENSION SCHEME" means Apollo Leisure Group Personal Pension Scheme.
1.2 In this Agreement:
1.2.1 the masculine gender includes the feminine and the singular number
includes the plural and vice versa;
1.2.2 references to persons include bodies corporate;
1.2.3 references to Clauses and the Schedules are references to clauses of
and the schedules to this Agreement;
1.2.4 references to United Kingdom statutes shall be deemed to refer to such
statutes as amended or re-enacted after the Commencement Date.
1.3 The Schedules form part of and are incorporated in this Agreement.
1.4 Headings are included for ease of reference only and shall not affect
the interpretation of this Agreement.
1.5 No modification, variation or amendment to this Agreement shall be
effective unless such modification, variation or amendment is in
writing and has been signed by or on behalf of the parties.
2. COMMENCEMENT
2.1 This Agreement supersedes all previous arrangements (if any) relating
to the employment of Executive by the Company and takes effect on the
Commencement Date.
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2.2 The Executive warrants that by entering into this agreement he will not
be in breach of any express or implied term of any contract with or any
other obligation to any third party binding upon him.
3. CAPACITY
3.1 The Executive shall be employed as Finance Director for Europe - Music
Division, responsible to the Chief Executive Officer-Music Division,
Europe (the "CEO") and if the CEO so resolve the Executive shall accept
office in or perform services for any Group Company in addition to or
in substitution for those services which he is required to perform for
the Company PROVIDED THAT the Executive shall only be required to
accept office in or perform services for Group Companies in accordance
with this Clause 3.1 where such requirement is reasonable in view of
the Executive's role and status within the Company.
3.2 The Executive shall serve the Company and/or any Group Company in such
other executive capacity of similar status within the Group and
reasonably within the scope of the Executive's capability and/or
qualifications as the CEO may from time to time determine.
3.3 The Executive may be required by the CEO to relocate within the UK.
This will be discussed and agreed with the Executive. In which case the
expenses reasonably incurred by the Executive in complying shall be
reimbursed by the Company in accordance with its policy determined from
time to time for meeting such expenses.
3.4 The Executive may be required by the CEO to travel to such places
(whether inside or outside the UK) as the CEO may from time to time
reasonably require.
4. DURATION
4.1 Unless previously terminated in accordance with Clauses 13 or 14, the
Employment can be terminated by either side giving to the other not
less than 6 months' notice in writing.
4.2 The Company reserves the right to terminate the Employment without
notice and to pay to the Executive Salary (at the rate in force at the
date of termination) in lieu of notice of termination of the
Employment or (where notice has been given) of any balance of the
notice period. For the avoidance of doubt, if the Executive is paid
Salary in lieu of notice, 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 thereto.
5. DUTIES
5.1 The Executive shall be responsible to the CEO and shall undertake the
duties and exercise the powers assigned to or vested in him by the CEO
and/or the Board and shall, during the continuance of the Employment,
well and faithfully serve the Company and use his best endeavours to
promote the interests of the Company and the Group.
5.2 The Executive shall observe and comply with the Articles of Association
of the Company and shall comply with all resolutions, regulations and
directions made or given by the CEO and/or the Board (which are not
inconsistent with this Agreement).
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5.3 Unless otherwise directed by the CEO or prevented by Incapacity and
subject to Clause 12, the Executive shall devote his full time,
attention and abilities to the business of the Company and such Group
Companies for whom he is required to perform services by the CEO
pursuant to Clause 3 in normal business hours and during such other
hours as may be necessary to perform his duties to the satisfaction of
the CEO.
5.4 The CEO shall be entitled pursuant to Clause 5.3 during any period of
notice of termination of the employment (whether given by the Company
or the Executive) to direct the Executive to perform no duties and to
direct that the Executive shall not enter or remain on any (or any
specified) premises of the Company and/or any Group Company and any
such direction may be given subject to any reasonable condition which
the CEO in his discretion shall determine PROVIDED THAT the period for
which the restrictions in Clause 19 apply shall be reduced by any
period under this clause which the Executive did not perform duties.
6. WORKING TIME
6.1 The Executive shall work such reasonable hours as are necessary for the
proper performance of his duties to the satisfaction of the CEO in
accordance with this Agreement. The Executive may in the proper
performance of his duties exceed the maximum average 48 hours per week
provided for under the Working Time Regulations 1998. He hereby
expressly exercises his right under the Working Time Regulations 1998
to opt out of the provisions which provide that he cannot work for more
than 48 hours per week on average.
6.2 If the Executive does not wish to exercise his right to opt out he
should delete Clause 6.1 prior to signing this Agreement.
6.3 If the Executive has given the consent in Clause 6.1 the Executive may
terminate this consent at any time by giving not less than 12 weeks'
written notice to the Company.
7. OTHER INTERESTS
7.1 The Executive shall not without the prior written consent of the CEO
directly or indirectly engage or be concerned or interested in any
other business, trade, profession or occupation during the Employment
(whether during or outside working hours).
7.2 Clause 7.1 shall not prohibit the Executive from holding or being
interested in securities in any company whose securities art quoted on
a Recognised Investment Exchange PROVIDED THAT such company is not in
competition with the business of the Company and/or any Group Company
and PROVIDED FURTHER THAT the Executive shall not hold or be interested
in more than three per cent (3%) of the issued securities of any class
of any one company.
7.3 The Executive shall comply with such code of practice issued by the
Company as shall from time to time be in force relating to transactions
in securities and shall comply with all requirements, recommendations
or regulations of The International Stock Exchange of the United
Kingdom and the Republic of Ireland or any other authority or body
authorised to regulate transactions in securities.
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7.4 Where appropriate the Executive shall during the Employment and for the
prohibited period after the termination of the Employment comply with
all applicable rules of the New York Stock Exchange or the exchange or
national market system in which Clear Channel Communication Inc (CCU)
common stock is then trading, and the rules and regulations of the
Securities Act of 1933, as amended (the "Securities Act") and the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
any Company Policy issued in relation to (i) dealings in shares
debentures or other securities of CCU and any Associated Companies or
(ii) unpublished price sensitive information affecting the securities
of any other company. The Executive shall provide all information and
such additional assistance to CCU or the Company as CCU or the Company
may reasonably request to allow it to fully comply with such rules,
regulations and policies. For the purposes of this clause the
"prohibited period" shall be from the date of termination of the
Employment until the later of (i) the next announcement of CCU's or any
Associated Company's results pursuant to the Exchange Act or (ii) such
time as when any price sensitive information the Executive has obtained
during the Employment ceases to be price sensitive information, either
through publication or otherwise.
8. REMUNERATION
8.1 The Company shall pay Salary to the Executive during the continuance of
the Employment initially at the rate of ONE HUNDRED THOUSAND POUNDS
(Pound Sterling 100,000)
8.2 Salary shall accrue from day to day and shall be payable by equal
monthly instalments in arrears on the 15th day of each month, payment
in respect of a period of less than a month being apportioned in
proportion to the number of days of the Employment in that month.
8.3 Salary shall be reviewed on 1st January in each calendar year. The
first review will take place on 1st January 2003 and thereafter on 1st
January in each calendar year.
8.4 The Company may, at the discretion of the CEO, pay to the Executive a
bonus of such amount as the CEO may determine from time to time. In
determining whether to pay the Executive a bonus in a particular year
and in determining the amount of any such bonus, the Company shall take
into account the same considerations as shall apply for determining the
amount (if any) of the bonus payable to other senior executives within
the Company of the Executive's level of seniority.
8.5 The Company shall be entitled, pursuant to Part II of the ERA, at any
time during the Employment and upon its termination (howsoever
arising), to deduct from the Salary and/or the Bonus and/or any other
sums due to the Executive under this Agreement, any sums owed by the
Executive to the Company.
9. EXPENSES
9.1 The Executive shall, subject to complying with the rules of the Company
relating to the reimbursement of expenditure in force from time to
time, be reimbursed all reasonable travelling, hotel, entertainment and
other out-of-pocket expenses properly and reasonably incurred in the
performance of the duties of the Employment.
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9.2 The Executive shall be entitled to be reimbursed for home and other
business telephone expenses and all expenses relating to one mobile
phone, which is to be provided to the Executive by the Company,
incurred for business or private use.
9.3 The Executive will be paid a Car Allowance of Pound Sterling 5,000 per
annum as per the Company's Car Policy. This will be paid in monthly
amounts with the salary payment and will be reviewed in accordance with
the company car policy.
10. PENSION AND INSURANCE
10.1 The Company shall, during the Employment, contribute monthly at the
rate of 10% per annum of the Salary (the "CONTRIBUTIONS") into the
Apollo Leisure Group Personal Pension Scheme or any other Inland
Revenue approved pension scheme for the benefit of the Executive
PROVIDED ALWAYS that the Executive pays contributions monthly into the
Pension Scheme at a rate not lower than 5% per annum of the Salary. The
contributions payable by the Executive shall be made by way of
deduction from the Salary. For the avoidance of doubt, the making of
the Contributions shall be subject to the rules of the Pension Scheme
as replaced or amended from time to time (the "Rules") including,
without limitation, the Rule or Rules providing for the discontinuance
of the Pension Scheme and shall also be subject to any statutory
limitations on benefits or requirements for approval of pension schemes
by the Inland Revenue as determined from time to time.
10.2 A contracting-out certificate issued under Section 7 of the Pension
Schemes Act 1993 is not in force in relation to the Employment.
10.3 The Executive shall, during the Employment, and for so long as such
cover is available on terms which the CEO considers to be reasonable,
be entitled to membership for him, his wife and unmarried dependent
children below the age of 21 (in full time education) of the Private
Patients Plan and the Company shall contribute to such scheme so that
the Executive shall be provided with benefits in accordance with this
Clause at the VIP rate.
10.4 The Company shall, during the Employment, provide the Executive with
life assurance cover at the rate of four (4) times the Salary subject
to the rules of the Scheme from time to time in force and to the
Executive continuing to be eligible to participate or benefit from the
Scheme.
11. STOCK OPTION SCHEME
11.1 If during the Employment the Executive is granted participation in a
Stock Option Scheme, any extinction or curtailment of any rights or
benefits under the Stock Option Scheme by reason of any transfer of
his employment or its termination, howsoever arising, 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,
suspension or termination on the Executive's rights or benefits under
the Stock Option Scheme shall be determined in accordance with the
rules, terms and conditions of the Stock Option Scheme and not in
accordance with the provisions (other than this Clause) of this
Agreement.
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11.2 The Executive's participation in the Stock Option Scheme (if any) shall
be commensurate with the participation (if any) in the Stock Option
Scheme by other senior executives within the Company of the Executive's
level of seniority.
12. HOLIDAYS
12.1 The Executive shall be entitled to public holidays and to 25 working
day's paid holiday in each period of twelve months commencing on 1
January during the Employment (the "HOLIDAY YEAR").
12.2 Holiday shall be taken at such time or times as may be approved by the
CEO and the Executive may not, without the prior written consent of the
CEO, take more than 10 working days consecutively or carry unused
holiday entitlement from one Holiday Year to another.
12.3 Holiday entitlement in the Holiday Year in which the Employment
commences or terminates shall be proportionate to the period of
service during the Holiday Year and the Executive shall be paid in
lieu of any entitlement not taken at the date of termination, any
payment in excess of holiday accrued due being deducted from the final
payment of the Salary.
12.4 The Company reserves the right, to require the Executive at its
discretion, to take any outstanding holiday during any notice period.
13. INCAPACITY
13.1 The Executive shall, subject to complying with the Company's rules
governing notification and evidence of absence by reason of Incapacity
for the time being in force, be entitled to payment of Salary (which
shall include any entitlement to statutory sick pay) in respect of
absence by reason of Incapacity as follows:
13.1.1 full Salary in respect of the first three months' absence.
PROVIDED THAT:
(A) the Executive shall not be entitled to be paid whilst absent
through Incapacity during more than an aggregate of ninety one
(91) days (whether working days or not) in any period of twelve
months; and
(B) whilst the Executive is entitled to be paid during Incapacity
there shall be deducted therefrom the aggregate of any amounts
receivable by the Executive by virtue of any sickness, accident
benefit or permanent health scheme operated by or on behalf of
the Company (except insofar as such amounts represent
reimbursement of medical or nursing fees or expenses incurred
by the Executive) and the amount of any social security
sickness or other benefit to which the Executive may be
entitled.
13.2 If the Executive shall be absent by reason of Incapacity for more than
an aggregate of ninety one (91) days (whether working days or not) in
any period of twelve months, the Company may, subject to Clause 13.3
below, at any time thereafter (but no longer than three months
after the ending of any such period of Incapacity) by not less than
three
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months' notice in writing to the Executive terminate the Employment and
the Executive shall have no claim for damages or otherwise against the
Company in respect of such termination.
13.3 The Company shall, for so long as such cover is available on terms
which the CEO considers to be reasonable, maintain a permanent health
insurance policy (the "Policy") for the benefit of the Executive and
shall bear all premiums required to keep the Policy in force throughout
the period of the Employment. Subject to the rules of the Policy from
time to time, the Executive may receive payment of two-thirds of the
Salary in respect of any period of Incapacity exceeding ninety one (91)
days (whether working days or not) and contributions to the Pension
Scheme may be maintained. The Company shall not terminate the
Employment in accordance with Clause 13.2 above unless the Company has
procured the continued payment of benefits under the Policy for the
period of the Incapacity or, apart from such termination, until such
benefits would have ceased to be payable had the Employment continued
PROVIDED THAT the Company may, in the event of the absence by reason of
Incapacity exceeding ninety one (91) days, require the Executive to
resign from any office held in the Company and/or any Group Company and
may, at its discretion, vary the capacity in which the Executive shall
continue in the Employment.
13.4 The Executive shall submit to medical examination at such time or times
and by such registered medical practitioner as the Company may select
and shall permit the disclosure of the outcome of such medical
examination to the Company PROVIDED ALWAYS that the Company shall meet
any costs and/or expenses incurred by the Executive in respect of any
such examination.
14. SUMMARY TERMINATION
14.1 The Company may summarily terminate the Employment so that the
Executive shall have no claim for damages or otherwise against the
Company in respect of such termination (but without prejudice to any
other remedy or remedies which it may have against the Executive) if
the Executive shall:
14.1.1 become of unsound mind or a patient for the purposes of Part VII of the
Mental Health ▇▇▇ ▇▇▇▇ or any statute related to mental health; or
14.1.2 be convicted of any criminal offence (other than an offence under road
traffic legislation in the United Kingdom or elsewhere for which a
penalty other than imprisonment is imposed; or
14.1.3 commit or reasonably be believed by the CEO and/or the Board to have
committed any act of dishonesty, any serious misconduct or any other
act which may seriously affect his ability to discharge his duties as
Finance Director; or
14.1.4 be guilty of any serious or (after written warning) persistent neglect
in the discharge of his duties or commit any wilful or (after written
warning) persistent breach of any of the provisions of this Agreement
(other than by reason of Incapacity); or
14.1.5 commit any act or so conduct himself in a manner which might or does
bring the reputation of the Company and/or any Group Company into
question or disrepute.
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14.2 The Company may at any time, by written notice given by the CEO,
suspend the Executive for the purpose of investigating any misconduct
or neglect alleged against the Executive for a period not exceeding one
month and during any such period the Executive shall not, except with
the consent in writing of the CEO, attend at any premises of the
Company or any Group Company or contact any employee of the Company or
any Group Company (other than a director of the Company or any Group
Company) or any customer or supplier of the Company or any Group
Company.
15. TRANSFER OF UNDERTAKING
In the event of the Company going into voluntary liquidation for the
purpose of amalgamation or reconstruction of transferring the whole or
any substantial part of its business to any other company, the
Executive shall not for that reason, or by reason of any consequent
termination of the Employment, have any claim for damages or otherwise
for breach of this Agreement so long as the Executive shall be offered
employment on terms overall no less favourable than those contained in
this Agreement by any company succeeding to the whole or any part of
the business of the Company.
16. DUTIES ON TERMINATION
16.1 Upon termination of the Employment for any reason, the Executive shall
without prejudice to any claim for damages or other remedy which either
party might have against the other:
16.1.1 upon the request of the Company immediately resign from all offices and
appointments held by him in or on behalf of the Company and any Group
Company;
16.1.2 immediately deliver up to the Company all correspondence, documents,
specifications, papers, magnetic disks, tapes or other software
storage media and property belonging to the Company and any Group
Company which may be in the Executive's possession or under his control
(including such as may have been made or prepared by or have come into
the possession or under the control of the Executive and relate in any
way to the business or affairs of the Company or any Group Company
and/or of any of their suppliers, agents, distributors and/or
customers) and the Executive shall not, without the written consent of
the CEO, retain any copies thereof;
16.1.3 immediately deliver up to the Company the mobile phone referred to in
Clause 9.2.
17. CONFIDENTIAL INFORMATION
17.1 The Executive shall not without prejudice to his common law duties in
respect of the same, during the continuance of the Employment or at any
time after its termination, for any reason use (other than for the
purposes of the Company and any Group Company) or disclose to any
person or persons whatsoever (except the proper officers of the Company
or under the authority of the CEO and/or the Board) and shall use his
best endeavours to prevent the publication or disclosure of any trade
secrets or confidential or secret information relating to the business,
technical processes, designs, source codes and computer systems,
software, employees and officers, or finances of the Company and any
Group Company and their suppliers, agents, distributors or customers or
any confidential or secret information relating to Property or
connected with the services
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provided or products manufactured, marketed or under development by the
Company or any Group Company all of which he may in the course of the
Employment become possessed.
17.2 Clause 17.1 shall not apply to information disclosed pursuant to any
order of any court of competent jurisdiction or any information which,
except through any breach of this or any other agreement by the
Executive, is in the public domain.
18. DATA PROTECTION
18.1 The Company will hold computer records and personnel files relating to
the Executive. These will include the Executive's employment
application, references, bank details, performance appraisals, holiday
and sickness records, salary reviews and remuneration details and other
records, (which may, where necessary, include sensitive data relating
to the Executive's health, and data held for ethnic monitoring
purposes). The Company requires such personal data for personnel
administration and management purposes and to comply with its
obligations regarding the keeping of employee/worker records. The
Executive's right of access to this data is as prescribed by law.
18.2 The Executive hereby agrees that the Company may process personal data
relating to him for personnel administration and management purposes
and may, when necessary for those purposes, make such data available to
its advisors, to parties providing products and/or services to the
Company (such as IT systems suppliers, pension, benefits and payroll
administrators), to regulatory authorities (including the Inland
Revenue), and as required by law. Further, the Executive hereby agrees
that the Company may transfer such data to and from its Associated
Companies including any Associated Companies located outside the
European Economic Area.
19. POST-EMPLOYMENT RESTRICTIONS
19.1 For the purposes of this Clause 19 the following expressions have the
following respective meanings:
19.1.1 the "TERMINATION DATE" means the date of termination for any reason of
the Employment;
19.1.2. the "PRIOR PERIOD" means the period of 12 months immediately preceding
the Termination Date.
19.2 The Executive understands and acknowledges that his senior position
with the Company and the Group gives him access to and the benefit of
confidential information vital to the continued success of the Company
and the Group and influence over and connection with the Company's
customers, suppliers, distributors, agents, employees and directors and
those of the Group, or prospective customers, suppliers, distributors,
agents, employees and directors with whom or which the Company or the
Group is in negotiation, with which the Executive is engaged or in
contact and hereby acknowledges and confirms that he agrees that the
provisions appearing in Clauses 19.5 and 19.6 below are reasonable in
their application to him and necessary but no more than sufficient to
protect the interests of the Company and the Group.
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19.3 The Executive agrees that in the event of receiving from any person,
firm, corporation or other organisation an offer of employment either
during the continuance of this Agreement or during the continuance in
force of any of the restrictions set out in Clauses 19.5 and 19.6
below, he will forthwith provide to such person, firm, corporation or
other organisation making such an offer of employment a full and
accurate copy of Clause 19 hereof.
19.4. In the event that any restriction contained in Clauses 19.5 and 19.6
below shall be found to be void, but would be valid if some part of the
relevant restriction were deleted, the relevant restriction shall apply
with such modifications as may be necessary to make it valid and
effective.
19.5 The Executive shall not without the prior written consent of the
Company, during the period of 12 months from the Termination Date,
whether alone or jointly with or as principal, partner, agent,
director, employee or consultant of any other person, firm or
corporation, and whether directly or indirectly, in competition with
any of the businesses of the Company or any Group Company carried on at
the Termination Date:
19.5.1 Subject to Clause 19.8, solicit the services or custom of or otherwise
deal with any person, firm or corporation who or which at any time
during the Prior Period was a customer, client, supplier, agent of
distributor of the Company or any Group Company, or a prospective
customer, client, supplier, agent or distributor with whom or which the
Company or any Group Company had entered into negotiations, and with
whom or which the Executive was personally concerned during the Prior
Period; or
19.5.2 entice or endeavour to entice away from the Company or any Group
Company or employ any person whose name is supplied to the Executive
on or about the Termination Date being persons employed by the Company
or any Group Company who reported to the Executive or to an employee of
the Company or a Group Company to whom the Executive reported or who
was in direct regular contact with the Executive during the Employment.
19.6 The Executive shall not without the prior written consent of the
Company, during the period of 12 months from the Termination Date
carry on (whether as an individual or otherwise and whether by
investing or working or allowing his name to be used or otherwise) the
business of: live entertainment and/or any other theatrical business
that materially competes or is liable materially to compete with any
business of the Company or any Group Company carried on at the
Termination Date in which the Executive was materially engaged during
the Prior Period where the competing business carries on business
within England, Wales or Scotland. For the avoidance of doubt this
clause shall not refer to any business in the radio or outdoor
advertising sector.
19.7 Nothing in Clause 19.6 shall prevent the Executive holding securities
in a company listed on a Recognised Stock Exchange where his holding
does not exceed three per pent of the class of securities concerned.
19.8 Subject to the provisos hereto, the Company shall not unreasonably
withhold the giving of its consent pursuant to Clause 19.5.1 and in
deciding whether or not it is reasonable to withhold its consent the
Company shall only withhold (and, for the avoidance of doubt, shall in
such case be entitled so to withhold) the giving of such consent if, in
the opinion
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of the CEO, acting in good faith, the proposed action or conduct of the
Executive in respect of which consent is sought, is such that it would
or might have an adverse effect on any of the businesses of the Company
or any Group Company carried on at the Termination Date or would or
might damage or harm the relationship of any Group Company with any
customer, client, supplier, agent or distributor (or prospective
customer, client, supplier, agent or distributor with whom or which the
Company or any Group Company had entered into negotiations) with whom
or which the Executive was personally concerned during the Prior
Period. The burden of proof with respect to establishing that the CEO
shall have acted in good faith shall lie on the Company PROVIDED THAT
it is not the parties intention thereby to increase the standard of
proof which the Company would otherwise have to meet if such burden had
not been so allocated and PROVIDED FURTHER THAT this Clause 19.8 shall
not apply with respect to any action or conduct falling within Clause
19.5.2.
19.9 The Executive agrees that he will not at any time after the termination
of the Employment represent himself as still having any connection with
the Company or any Associated Company, save as a former employee for
the purpose of communicating with prospective employers or complying
with any applicable statutory requirements
20. INTELLECTUAL PROPERTY
20.1 The Executive shall promptly communicate to the Company all Own
Property (whether or not capable of protection by any Intellectual
Property Right).
20.2 The Executive agrees that all right, title and interest to Own Property
(including all rights in connection with it which arise whether before
or after the Employment terminates) throughout the world EXCEPT any
such Own Property which by virtue of the Patents ▇▇▇ ▇▇▇▇ (as amended)
belongs to the Executive shall, without payment, belong to the Company
absolutely.
20.3 When instructing any person, firm or company to carry out work
(including the supply of goods and/or services) for the Company or any
Group Company or in connection with the Company's business or the
business of any Group Company the Executive shall ensure that such
person, firm or company first assigns to the Company or any Group
Company all future Intellectual Property Rights in any Property which
they conceive, create, devise, produce, discover or formulate in the
course of carrying out the work which they are instructed to perform.
20.4 The Executive shall, during the Employment and thereafter at the
direction and expense of the Company, apply for and do all acts and
things necessary to obtain and maintain any Intellectual Property Right
that may subsist in any Own Property which by virtue of this Clause or
any statute affecting Property belongs to the Company or any Group
Company in any part of the world as the Company may require and shall
vest all such Intellectual Property Rights in the Company or as the
Company may direct.
20.5 The Executive hereby irrevocably waives all moral rights arising under
the Copyright, Designs and Patents ▇▇▇ ▇▇▇▇ in any copyright work
written or created by him in the course of the Employment and all moral
rights in all other countries in which copyright (including future
copyright) in any work subsists or may subsist except to the extent
that
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the Executive shall exercise such moral rights at the Company's request
provided that the Company shall pay the Executive's expenses in so
doing.
21. PRESCRIBED INFORMATION
21.1 The following information is set forth for the purposes of section 3,
ERA:
21.1.1 If the Executive shall have a grievance relating to the Employment or
is dissatisfied with any disciplinary decision relating to him he may
apply to the Board and his application will be dealt with by the Board
at a meeting at which the Executive shall be entitled to be present.
21.1.3 The Executive's period of continuous employment began on the
Commencement date.
22. SEVERABILITY
The Company and the Executive acknowledge that the Clauses and
sub-Clauses and Schedules of this Agreement are severable. If any
Clause, sub-Clause or identifiable part of any Clause or sub-Clause or
Schedule or any paragraph of any Schedule is held to be invalid or
unenforceable by an English court, 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.
23. 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.
24. GOVERNING LAW AND JURISDICTION
This Deed shall be governed by English law and for the benefit of the
Company, the Executive hereby submits to the exclusive jurisdiction of
the English Courts. The Executive hereby agrees that service upon the
Executive at his address specified in this Agreement or such other
address as he may notify to the Company in writing of any proceedings
relating to this Deed or to any document entered into pursuant hereto
shall constitute good service upon the Executive.
25. NOTICES
Any notice shall be duly served under this Agreement if, in the case of
the Company, it is handed to a director of the Company (other than the
Executive) or sent by recorded or first class post to the Company at
its registered office for the time being and if, in the case of the
Executive, it is handed to his or sent by recorded or first class post
to him at his address specified in this Agreement or such other address
as he may notify to the Company. A notice sent by recorded or first
class post shall be deemed served on the working day next following
posting.
IN WITNESS whereof the parties hereto have executed and delivered this
instrument as a Deed the day and year first before written.
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SIGNED by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ )
for and on behalf of APOLLO )
LEISURE (UK) LIMITED in the )
presence of:
SIGNED by ▇▇▇▇ ▇▇▇▇▇▇▇▇ )
in the presence of: )
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[CLEAR CHANNEL ENTERTAINMENT LOGO]
PRIVATE & CONFIDENTIAL
▇▇▇▇ ▇▇▇▇▇▇▇▇
European Music
Argyll Street
13th October 2004
Dear ▇▇▇▇,
RE: AMENDMENTS TO CONTRACT OF SERVICES TERMS & CONDITIONS
I am pleased to confirm your recent promotion to President of European
Music with effect from 1st October 2004.
To reflect the promotion your salary has been increased to Pound
Sterling 200,000, with a continuous 5% salary increase per annum. Your
next salary increase will take place on 1st January 2006. In addition
you will also receive a non-consolidated Car Allowance of Pound
Sterling 20,000 per annum, which is also effective from 1st October
2004.
The Company has also reviewed its bonus structure for Senior Executives
and future bonus payment will be calculated on the following basis:-
- Contractual Bonus of Pound Sterling 50,000 will be paid to
you based on the achievement of the annual objectives set
by the President of Global Music.
- 15% bonus based on European Music EBITDA growth.
This new bonus structure gives you the capability to earn up to a
maximum of 200% of your salary in a given year should you reach a 25%
EBITDA growth figure. This is based in a sliding scale and a copy of
this is attached for your information.
This bonus structure will apply with immediate effect and your 2005
payment will be made in the first quarter of 2006.
As of this date you will report to directly to the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-President Global of Music.
All other Terms & Conditions as stated in your previous Contract of
Services remain unchanged. If you have any queries, please do not
hesitate to contact me directly.
Yours sincerely
/s/ Jignna ▇▇▇▇▇
---------------------------
JIGNNA ▇▇▇▇▇
HUMAN RESOURCES CONSULTANT