THIS AGREEMENT is made the First day of July 1990
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BETWEEN:
(1) BERKELEY GOVETT & COMPANY LIMITED a company incorporated in Jersey whose
registered office is situate at Templar House, Don Street, St. Helier,
Jersey, Channel Islands (hereinafter called "the Company") and
(2) IAN KENNETH WHITEHEAD of 1 Vallence Road, London N22 4UD (hereinafter
called "the Employee").
NOW IT IS hereby agreed as follows:
1. APPOINTMENT
The Company agrees to employ the Employee initially as Vice-President,
Finance with effect from 1st September 1990 and on or about 1st January
1991 as Chief Financial Officer of the Company on the terms of this
agreement.
2. TERM
This Agreement and the employment shall commence on the 1st day of
September 1990 and shall continue (subject to termination as hereinafter
mentioned) until:-
(a) the Company gives the Employee one year's written notice to expire
at any time; or
(b) the Employee gives the Company six months written notice to expire
at any time.
3. DUTIES
The Employee agrees to perform the following duties based in London and
reporting solely to the Chairman of the Company:-
a) for the period from the commencement of this agreement until on or
about 31st December 1990 the duties of Vice-president Finance of
the Group, with overall responsibility along with
the Group's existing Chief Financial Officer for the day to day
financial operations of the Group; and
b) thereafter the duties of Chief Financial Officer of the Group with
overall responsibility for the day to day financial operations of
the Group and implementation of the Group's financial policies and
requirements within the Group's business plan, and liasing with
the Company's major investors in presenting the financial position
of the Group.
The Employee further agrees that the Company at its discretion may require him
from time to time to perform other duties consistent with his status beyond the
duties set out above and he agrees to perform those duties or undertake those
tasks as if they were specifically required under this agreement.
4. TIME and ATTENTION
a) The Employee agrees to devote the whole of his time and attention
and skills necessary to perform the duties of his office and shall
faithfully and diligently perform such duties and exercise such
powers as may from time to time be assigned to or vested in him
and shall obey all reasonable and lawful directions given to him
and shall use his best endeavours to promote the interests of the
Company.
b) The Employee shall not during the continuance of his employment
hereunder (except as a representative of the Company or any of its
subsidiaries or with the consent in writing not to be unreasonably
withheld of the Chairman of the Company) be directly or indirectly
engaged or concerned in the conduct of any other business nor
shall he be directly or indirectly interested in any such business
save through his holding or being interested in investments
(quoted or unquoted) not representing more than 5% of the issued
equity share capital of any class of any one company.
5. CONFIDENTIAL INFORMATION
The Employee shall not use, divulge or communicate to any person (other
than those whose province it is to know the same) any of the
trade secrets or confidential information of the Company or any company
in the Group which he may have received or obtained while in the service
of the Company or any member of the Group. This restriction shall
continue to apply after the termination of his employment without limit
in point of time but shall cease to apply to information or knowledge
which may come into the public domain otherwise than through unauthorised
disclosure by the Employee.
6. REMUNERATION
The remuneration of the Employee shall be:
a) A fixed salary at the rate of GBP100,000 per annum payable
monthly on the 20th day of each month and the parties hereby agree
that the said salary shall be inclusive of any other sums
receivable as directors' or advisers' fees or other remuneration
from the Company or any company in the Group. The amount of the
said salary shall be reviewed annually by the Chairman of the
Company at the time that the remuneration package of the other
senior executives of the Group are reviewed ("the review date"),
any adjustments to be made to the amount of such salary to be
upwards only.
b) In addition, the Chairman of the Company shall consider each year,
not later than the review date, taking into account the
performance of the Group and the contribution made thereto by the
Employee to the Group during the previous twelve months, whether
additional bonus payments should be made to the Employee, the
amount of such payments to be at the absolute discretion of the
Chairman of the Company.
c) The Company shall provide a motor car for the use of the Employee
for the performance of his duties, such a car to be a Volvo Estate
car (or a car of equivalent value) such motor car to be replaced
every three years. The Company agrees to pay all the running costs
of such vehicle except for petrol for the Employee's own use and
the Employee agrees to take all reasonable care to keep the car in
a good condition and at the end of his employment hereunder
(howsoever caused) to return the said vehicle forthwith.
d) The Employee is entitled to be reimbursed for reasonable business
entertainment and out of pocket expenses properly incurred by him
in the performance of his duties including the expenses of
travelling and subsistence and the Employee agrees to produce to
the Chairman of the Company at his request reasonable evidence of
such expenses.
e) The Employee is eligible to participate in the Company's executive
share option scheme, under which he has been granted options to
acquire 100,000 ordinary shares in the Company at a price of
GBP 1.85 per share, such options becoming vested over a period
of twenty one months as more particularly described in the option
certificates relating thereto. The number of options granted to
the Employee will be reviewed (on an upward basis only) on the
review date each year with additional options being granted on
terms to be agreed if the Chairman of the Company considers it
appropriate.
f) The Employee shall be a member of the John Govett non-contributory
company pension scheme during his employment hereunder.
g) The Company agrees to provide life insurance cover of three times
the Employee's salary as defined in sub-clause (a) hereof but the
Company's obligation hereunder shall be satisfied if the Employee
becomes a member of the John Govett pension plan and his
membership includes such cover.
7. DIRECTORSHIPS
Unless otherwise agreed, the Employee will not be a director of the
Company or any other company in the Group whilst employed hereunder.
8. ILLNESS
a) In the case of the illness of the Employee or other cause
incapacitating him from attending to his duties (such illness or
other cause being hereinafter called "the incapacity") the
Employee shall continue to be paid for such absence (such payment
to be inclusive of any Statutory Sick Pay to which the Employee
may be entitled) for a period of six months. At the end of such
period the Company shall be entitled to terminate the Employee's
employment forthwith, but with payment in lieu of the notice that
the Employee would otherwise be entitled to. It is understood that
in any event, the Employee will be covered by the Company's
permanent health insurance scheme.
b) Provided that if the incapacity shall be or appear to be
occasioned by actionable negligence of a third party in respect of
which damages are or may be recoverable the Employee shall
forthwith notify the Board of that fact and of any claim,
compromise, settlement or judgement made or awarded in connection
therewith and shall give to the Board all such particulars of such
matters as the Board may reasonably require and shall if so
required by the Board refund to the Company such damages (so far
as those damages relate to the loss of earnings for the period of
the incapacity) as the Board may reasonably determine but not
exceeding the amount of damages or compensation recovered by him
under such claim, compromise, settlement or judgement less any
costs in or in connection with or under such claim, compromise,
settlement or judgement borne by the Employee and not exceeding
the aggregate of the remuneration paid to him by way of salary in
respect of the period of the incapacity.
9. SUMMARY TERMINATION
The employment of the Employee hereunder may be terminated by the
Company, acting through its Chairman, without notice if the Employee is
guilty of any gross default or misconduct in connection with or affecting
the business of the Company or any company in the Group, in the event of
any serious or repeated breach or non-observance (after the giving of due
warning) by the Employee of any of the stipulations herein contained, if
the Employee becomes bankrupt or makes any composition or enters into any
Deed of arrangement with his creditors, if the Employee is convicted of
any arrestable criminal offences or suffers a term of imprisonment
following conviction (other than an offence under road traffic
legislation in the United Kingdom or elsewhere for which a fine or
non-custodial penalty is imposed), if the Employee is disqualified from
holding office under the Company Director's Disqualification Act 1986, or
if the Employee is unable to satisfy any applicable requirement of any
regulatory authority to which the Company or any company in the Group is
subject which is required for the Employee to enable him to carry out
substantially the whole of his duties hereunder.
10. DUTIES ON TERMINATION
Upon the termination howsoever caused of this Agreement the Employee:
a) if at that time the Employee is a Director or officer of the
Company or any other company in the Group he shall upon the
request of the Company resign without claim for compensation from
all such offices held by him in any associated companies as may be
so requested and in the event of his failure to do so forthwith
upon request the Company is hereby irrevocably authorised to
appoint some person in his name and on his behalf to sign and
deliver such resignation or resignations to the Company and to
each of the companies in the Group of which the Employee is at the
material time a director or other officer;
b) shall deliver to the Company all correspondence, documents and
other papers and all other property belonging to the Company or
any company in the Group which may be in the Employee's possession
or under his control which relate in any way to the business or
affairs of the Company or any company in the Group or of any
customer or client of the Company or any company in the Group and
the Employee shall not without the prior consent of the Board
retain any copies thereof;
c) without the consent of the Company shall not at any time
thereafter represent himself still to be connected with the
Company or any company in the Group.
11. RECONSTRUCTION OR AMALGAMATION
If during the continuance of this Agreement the employment of the
Employee hereunder is terminated by reason of the liquidation of the
Company for the purpose of a scheme of reconstruction or amalgamation and
the Employee is offered employment with any concern or undertaking
resulting from such reconstruction or amalgamation on terms no less
favourable than under this agreement then the Employee shall have no
claim against the Company in respect of the termination of his employment
hereunder by reason or such liquidation.
12. CHOICE OF LAW
This agreement shall be interpreted and enforced in accordance with the
laws of England and the parties submit to the non-exclusive jurisdiction
of the English Courts. The Company hereby appoints John Govett & Company
Limited at its registered office for the time being as its agent to
accept service of any process in relation to this Agreement.
13. NOTICES
NOTICES by either party must be given by letter or by telex message
(confirmed by letter) addressed to the other party at (in the case of the
Company) its registered office for the time being and (in the case of the
Employee) his last known address and any such notice given by letter or
telex message shall be deemed to have been given at the time at which the
letter or telex message would be delivered in the ordinary course of post
or transmission as the case may be.
14. PARTICULARS OF EMPLOYMENT
The following additional particulars are given in compliance with the
Employment Protection (Consolidation) Act 1978 (as amended):
a) No period of previous employment counts towards the Employee's
continuous employment which will commence on 1st September 1990;
b) Save as otherwise provided herein there are no terms or conditions
of employment relating to out of work or to normal working hours
or to entitlement to holidays beyond 25 working days a year
(provided that the last five days of such entitlement shall not be
taken consecutively) (plus public holidays) or holiday pay (other
than that in the year the Employee's employment terminates he will
have a right to holiday pay for an amount proportionate to the
amount of the year elapsed in respect of accrued holidays not
taken) or to incapacity to work due to sickness or injury (save as
a member of the Company's permanent health insurance scheme) or to
pensions or pension schemes;
c) Because of the seniority of the Employee's position where there
are no formal disciplinary rules set out for the Employee but he
is expected to exhibit a high standard propriety in all his
dealings with and in the name of the Company and any company in
the Group;
d) Because of the seniority of the Employee's position, if the
Employee is dissatisfied with any disciplinary decision or if he
has any grievance relating to his employment hereunder he should
refer such disciplinary decision or grievance to the Chairman of
the Company and the reference will be dealt with by him;
e) a contracting out certificate is in force in respect of the
pension scheme referred to in Clause 6(f) hereof.
15. DEFINITIONS
In this Agreement unless a context otherwise requires the following
expressions shall have the following meanings:
"associated company" means a subsidiary and any other company
which is for the time being a holding company (as
defined by Section 736 of the Companies Act 1985)
of the Company or another subsidiary of any such
holding company;
"the Group" shall mean the Company together with its
associated and subsidiary companies in the United
Kingdom and elsewhere in the world;
"the Board" means the Board of Directors for the time being of
the Company;
"subsidiary" means a subsidiary (as defined by Section 736 of
the Companies Act 1985) for the time being of the
Company.
AS WITNESS whereof the parties or their duly authorised representatives have
hereunto put their hands the day and year first above written.
Signed by ) /s/ Arthur I. Trueger
for and on behalf of ) Executive Chairman
BERKELEY GOVETT & COMPANY )
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LIMITED in the presence of:- ) /s/ Kathilee L. Fong
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Signed by IAN KENNETH WHITEHEAD ) /s/ Ian K. Whitehead
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In the presence of:- ) /s/ Andrew J. Dunlop