EXHIBIT 10.22
EXECUTION COPY
THIS AGREEMENT is made the 9 day of August 2002
BETWEEN:
(1) ANDY LOWN of 43A Charleville Road West Kensington London W14 9JJ ("the
Executive")
(2) MTS., INC TRADING AS TOWER RECORDS incorporated in California whose
principal place of business is at 2500 Del Monte Street, West
Sacramento, California 95691 ("the Company")
1. BACKGROUND:
(A) The Company employs the Executive as the Senior Vice President and
Director of European Operations.
(B) Since on or about May 2001 the Company has been experiencing adverse
trading conditions in the UK and having recognised the Executive as a
key contributor to the survival and success of the Company's UK and
Irish businesses has been in discussions with the Executive since that
time about the terms of a proposed retention plan to incentivise the
Executive to remain employed with the Company and to co-operate in an
orderly transition of the Company's UK and Irish businesses to new
ownership or management.
(C) The Company currently proposes either to:
(a) sell or franchise all of the Company's UK and Irish business
operations to one or more third parties; and/or
(b) close all of the Company's UK and Irish business operations
(excluding www.towerrecords.co.uk); or
(c) a combination of (a) and (b) above.
(D) The Company now wishes to record the terms agreed for the retention and
incentivisation of the Executive and the Executive agrees to remain
employed, assist, advise and co-operate with the Company to achieve the
Company's objectives as set out in recital B above on the terms set out
in this Agreement.
IT IS AGREED AS FOLLOWS:
2. DEFINITIONS AND INTERPRETATION
2.1 In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings:
"ADVISOR" Susan-Jane Davies, Hammond Suddards Edge, 7
Devonshire Square, Cutlers Gardens, London EC2M 4YH;
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"AGREEMENT" this Agreement including the Schedule;
"BOARD" the board of directors of the Company from time to
time and includes any committee of the Board duly
appointed by it;
"BUSINESSES" the retail sales and marketing of recorded music,
books, videos, DVD's and any trade or other
commercial activity which is carried on by the
Company during the Employment, or which the Company
shall have determined during the Employment to carry
on with a view to profit in the immediate or
foreseeable future after the Employment ends;
"COMPANY any improvement, invention or discovery made by the
INVENTION" Executive which in accordance with Section 39,
Patents Act 1977 is the property of the Company;
"CONFIDENTIAL any trade secrets or other information which is
INFORMATION" confidential, commercially sensitive and is not in
the public domain relating or belonging to the
Company including but not limited to information
relating to the business methods, corporate plans,
management systems, finances, any information
concerning a third party or the Company's
restructuring proposals in Europe; new business
opportunities, research and development projects,
marketing or sales of any past, present or future
product or service, secret formulae, research and
experimental work, processes, inventions, designs,
know-how discoveries, technical specifications and
other technical information relating to the
creation, production or supply of any past, present
or future product or service of the Company, lists
or details of clients, potential clients or
suppliers or the arrangements made with any client
or supplier and any information in respect of which
the Company owes an obligation of confidentiality
to any third party;
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"DUTIES" the additional duties of the Executive as set out in
clause 6;
"EMPLOYMENT" the period of the Executive's employment with the
Company;
"MATERIAL INTEREST" (a) the holding of any position (whether employed
or engaged) or provision of services as
director, officer, employee, consultant,
adviser, partner, principal, agent or
volunteer;
(b) the direct or indirect control or ownership
(whether jointly or alone) of any shares (or
any voting rights attached to them) or
debentures save for the ownership for
investment purposes only of not more than 5
per cent of the issued ordinary shares of any
company whose shares are listed on any
Recognised Exchange; or
(c) the direct or indirect provision of any
financial assistance;
"PAYMENT DATE" the date or dates (as the case may be) as referred
to at clause 3 of this Agreement
"RETRENCHMENT PLANS"
(a) the sale or franchise of all the
Company's UK and Irish business
operations to one or more third
parties; and/or
(b) the closure of all the Company's UK
and Irish business operations
(excluding www.towerrecords.co.uk );
or
(c) a combination of (a) and (b) above,
provided that MTS, Inc. shall have
completely closed or divested its UK
and Irish
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business operations (except
towerrecords.co.uk)
"SUCCESS FEE" a sum equal to:
(i) the aggregate of L25,000 for each
complete year of the Executive's service with
the Company; and
(ii) a further sum being the amount specified
in sub-clause (i) above pro rated for each
complete month worked in any incomplete year
worked up to the Payment Date;
(iii) subject to a maximum payment of
L450,000 (subject to deductions); and
"TERMINATION DATE" the date on which the Employment terminates.
3. SUCCESS FEE
3.1 As consideration for:
(a) the Executive's agreement to abide by the terms of this
Agreement; and
(b) to reward the Executive for his continued employment and
commitment to the Company; and
(c) the Executive's agreement to enter into a compromise agreement
on the termination of the Employment in the form set out in the
attached schedule 1;
the Company shall pay the Executive the Success Fee (subject to
applicable deductions for tax and national insurance contributions).
3.2 The Success Fee will be paid to the Executive in two lump sums as
follows:
(i) L30,000 (less PAYE deductions) immediately on the
signing of this Agreement in consideration for the
Executive's consent herein to the variation of his terms
and conditions of employment as contained in clauses 6
4
to 10 inclusive of this Agreement and further for the
Executive's agreement to commit to achieving any one of the
events listed in clause 2.1 above as being the Retrenchment
Plans; and
(ii) the balance immediately on the happening of the first of the
following events, provided always that the Executive has, prior
to or concurrent with the payment of the balance of the Success
Fee, signed, dated and delivered to the Company a comprise
agreement in the form set out in the attached schedule 1:
(A) the completion of any one of the events listed in clause
2.1 above as being the Retrenchment Plans; or
(B) the Company or, if sooner, its UK and Irish Branch
business ceases trading for whatever reason; or
(C) the termination of the Executive's employment (save
where such termination is for cause)
3.3 The Success Fee will not be paid to the Executive if at any time up to
the Payment Date one of the following conditions apply:
(a) the Executive gives notice to terminate his Employment other
than for cause;
(b) the Executive breaches any material term of this Agreement or
any material term and condition of his employment and fails to
remedy the same (if capable of remedy) within a reasonable time
after having been notified of such breach by the Employer in
writing.
3.4 Where the Success Fee or any part of it is not paid to the Executive at
the time it is due it shall earn interest at the rate of 2% per annum
above the base lending rate of Barclays Bank plc from time to time.
4. TAX
4.1 The Company agrees that it will within a reasonable period of time after
the date of this Agreement write to the District Inspector of Taxes, HM
Land Revenue (and thereafter supplying all such information as the
District Inspector may require) seeking a clearance for such proportion
of the Success Fee as can be attributed to compensation for loss of
employment as referred to in clause 3.1 (c) and the Schedule to this
Agreement.
4.2 The Executive agrees to keep the Company indemnified against any
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PAYE payable by the Executive in respect of the Success Fee in excess of
any PAYE deduction made by the Company at source. The Company agrees to
remit any PAYE deducted at source forthwith to the UK Inland Revenue and
to keep the Executive fully indemnified against any demand for PAYE
deducted by the Company and not so remitted
4.3 The Executive further agrees to indemnify and keep the Company
indemnified against any liability to primary Class I National Insurance
contributions in respect of the Success Fee in excess of any deduction
made by the Company at source in respect of such liabilities.
5. COSTS
5.1 The Company will pay the Executive's reasonable legal costs up to a
maximum of $15000 (US dollars) (or the sterling equivalent at the
exchange rate prevailing at the Payment Date) plus the equivalent of VAT
incurred in respect of the advice received by the Executive as to the
terms of this Agreement.
5.2 Payment of the Executive's legal costs will be made direct to the
Advisor within 30 days after receipt by Michael Solomon of the Company
at fax number (001) 916 373 3012 of copies of invoices from the
Executive's solicitors addressed to the Executive but marked payable by
the Company and accompanied by activity breakdowns supporting each
invoice. Copies of the invoices and activity breakdowns shall also be
sent by the Executive's Solicitors to Claire White at Osborne Clarke.
6. DUTIES OF THE EXECUTIVE
6.1 During the Employment the Executive shall carry out such duties as may
attach to the Executive's office or be assigned to or vested in the
Executive by the Board from time to time (commensurate with his
position) and exercise the powers consistent with such duties.
6.2 At all times during the Employment the Executive shall:
(a) unless prevented by ill health and except during holidays,
devote the whole of the Executive's working time and attention
to the Employment;
(b) perform the Duties faithfully and diligently;
(c) obey all lawful and reasonable directions of the Board, observe
such restrictions or limitations as may from time to time be
imposed by the Board upon the Executive's performance of the
Duties and implement and abide by any relevant Company policy
which may be promulgated or operated in practice from time to
time;
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(d) use best endeavours to promote the interests of the Company and
shall not do or willingly permit to be done anything which is
harmful to those interests; and
(e) keep the Board fully informed (in writing if so requested) of
the Executive's conduct of the business or affairs of the
Company and provide such explanations as the Board may require.
6.3 The Executive will use his best endeavours to facilitate the Company's
Retrenchment Plans.
7. INDEMNITY
7.1 The Company shall at its own cost forthwith upon signing this Agreement
procure that the Executive shall be covered under a comprehensive
directors and officers' indemnity policy in respect of the Employment
and shall supply the Executive with the broker's or insurer's summary of
cover and evidence of payment by the Company of the premium.
7.2 The Company agrees to indemnify the Executive to the extent permitted by
law against any loss that the Executive sustains as a result of any act
or omission on its behalf.
8. OBLIGATIONS DURING EMPLOYMENT
8.1 INVENTIONS
(a) The Executive shall promptly disclose to the Company full
details including, without limitation, any and all computer
programs, photographs, plans, records, drawings and models, of
any know-how, technique, process, improvement, invention or
discovery (whether patentable or not) which the Executive
(whether alone or with any other person) makes, conceives,
creates, develops, writes, devises or acquires at any time
during the Employment and which relates or which could relate,
directly or indirectly, to the Businesses.
(b) If the know-how, technique, process, improvement, invention or
discovery is a Company Invention, the Executive shall (to the
extent that it does not automatically vest in the Company by
operation of law) hold it in trust for the Company and, at the
request and expense of the Company, do all things necessary or
desirable (including entering into any agreement that the
Company reasonably requires) to enable the Company or its
nominee to obtain for itself the full benefit of and to secure
patent or other appropriate forms of protection for the Company
Invention throughout the world.
(c) If the know-how, technique , process, improvement, invention
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or discovery is not a Company Invention, the Company shall treat
all information disclosed to it by the Executive as confidential
property of the Executive.
(d) The patenting and exploitation of any Company Invention shall be
at the sole discretion of the Company.
8.2 COPYRIGHT, ETC.
(a) The Executive shall promptly disclose to the Company all works
including, without limitation, all copyright works or designs
originated, conceived, developed, written or made by the
Executive alone or with others during the Employment which
relate, or could relate, to the Businesses and shall (to the
extent that they do not automatically vest in the Company by
operation of law) hold them in trust for the Company until such
rights have been fully and absolutely vested in the Company.
(b) The Executive assigns to the Company by way of present and
future assignment (to the extent not already vested in the
Company by operation of law) all copyright, design rights and
other proprietary rights (if any) for their full terms
throughout the world in respect of all copyright works and
designs originated, conceived, written, developed or made by the
Executive alone or with others during the Employment which
relate, or could relate, to the Businesses.
(c) The Executive irrevocably and unconditionally waives in favour
of the Company any and all moral rights conferred on the
Executive by Chapter IV, Part I, Copyright Designs and Patents
Act 1988 and any other moral rights provided for under the laws
now or in future in force in any part of the world for any work
the rights in which are vested in the Company whether by
sub-clause (b) or otherwise.
(d) The Executive shall, at the request and expense of the Company,
do all things reasonably necessary or desirable (including
entering into any agreement that the Company reasonably requires
to vest the rights referred to in this clause in the Company) to
substantiate the rights of the Company under sub-clauses (b) and
(c).
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8.3 The Executive irrevocably appoints the Company as his attorney in his
name and on his behalf to execute documents, to use his name and to do
all things which may be necessary or desirable for the Company to obtain
for itself or its nominee the full benefit of the provisions of sub
clause 8.1(b) and 8.2(b) and a certificate in writing signed by any
director or the Company Secretary that any instrument or act falls
within the authority conferred by this clause shall be conclusive
evidence that such is the case so far as any third party is concerned.
8.4 CONFLICT OF INTEREST
(a) During the Employment, the Executive shall not (save as required
by law):
(i) directly or indirectly disclose to any person or use
other than for any legitimate purposes of the Company
any Confidential Information;
(ii) without the Board's prior written permission hold any
Material Interest in any person which:
(A) is wholly or partly in competition with any of
the Businesses;
(B) impairs or might reasonably be thought by the
Company to impair the Executive's ability to act
at all times in the best interests of the
Company; or
(C) requires or might reasonably be thought by the
Company to require the Executive to disclose or
make use of any Confidential Information in
order properly to discharge the Duties to or to
further the Executive's interest in that person;
(iii) at any time (whether during or outside normal working
hours) take any preparatory steps to become engaged or
interested in any capacity whatsoever in any business or
venture which is in or is intended to enter into
competition with any of the Businesses;
(iv) at any time make any untrue or misleading statement in
relation to the Company;
(v) carry out any public or private work other than the
Duties (whether for profit or otherwise and whether
during or outside normal working hours) except with the
prior written permission of the Board; or
(vi) directly or indirectly receive or obtain in respect of
any
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goods or services sold or purchased or other business
transacted (whether or not by the Executive) by or on
behalf of the Company any discount, rebate, commission
or other inducement (whether in cash or in kind) which
is not authorised by any Company rules or guidelines
from time to time and if the Executive or any person in
which the Executive holds any Material Interest shall
obtain any such discount, rebate, commission or
inducement, the Executive shall immediately account to
the Company for the amount so received.
(b) The Executive shall, at any time during the Employment or
following its termination, at the request of the Company return
to the Company
(i) any documents, drawings, designs, computer files or
software, visual or audio tapes or other materials
containing information (including, without limitation,
Confidential Information) relating to the Company's
business created by, in the possession of or under the
control of the Executive; and
(ii) any other property of the Company or in his possession
or under his control.
(c) The Executive shall not make or keep or permit any person to
make or keep on his behalf any copies or extracts of the items
referred to in sub-clause (b) (i) in any medium or form. The
Executive will, immediately, at the Company's request forward to
or deliver up to the Company any information belonging to the
Company from any computer and/or word processing system in his
possession or under his control and, thereafter, confirm in
writing that he has irrevocably removed all such property from
his possession and control
9. POST TERMINATION CO-OPERATION
9.1 For a reasonable period following the termination of the
Employment (not expected to be more than 3 months):
(a) at the request of the Company, the Executive shall assist it in
any threatened or actual litigation concerning the Company where
the Executive is in the possession or knowledge of any facts or
matters which the Company reasonably considers relevant to such
litigation. Such assistance includes but is not limited to
giving statements, meeting with legal or other professional
advisers, attending any legal hearing and giving evidence; and
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(b) at the reasonable request of the Company, the Executive shall
fully co-operate with the Company to assure a smooth transition
of his responsibilities and projects to senior management of the
Company and/or its designated representatives, any and all
knowledge and/or information which the Executive has acquired
during and/or as a result of his employment with the Company.
9.2 The Company shall pay the Executive an hourly consultancy fee of not
less than the Executive's equivalent gross salary (which, for the
avoidance of doubt excludes any bonus or retention payment) on the
Termination Date prorated together with his costs and expenses incurred
in giving his reasonable assistance pursuant to this clause 9.
10. POST TERMINATION RESTRICTIONS
10.1 For the period of 12 months after the Termination Date, the Executive
shall not directly or indirectly, whether on the Executive's own behalf
or on behalf of another person solicit or entice away from the Company
any person who is and was at the Termination Date or during the period
of 12 months preceding the Termination Date, employed or engaged by the
Company in any of the Businesses in a senior managerial, technical,
supervisory, sales or marketing capacity and was a person with whom the
Executive dealt in the course of the Duties and who by reason of such
employment or engagement is likely to have knowledge of any trade
secrets or Confidential Information of the Company.
10.2 At any time after the Termination Date, the Executive shall not:
(a) hold himself out (nor shall he permit another person to hold the
Executive out) as being in any way currently connected with or
interested in the Company (this will not prevent him from
stating his length of service and job title or prior employment
with the Company); or
(b) disclose to any person, or make use of any Confidential
Information.
10.3 Each undertaking contained in clause 10 shall be separately construed as
a separate and independent undertaking and whilst the restrictions in
clause 10 are considered by the parties to be reasonable in all the
circumstances the parties agree that if any one or more of such
restrictions shall either taken by itself or themselves together be
adjudged to be invalid, unlawful or unenforceable or go beyond what is
reasonable in all the circumstances for the protection of the Company's
legitimate interests but would be adjudged valid, lawful, enforceable or
reasonable if any particular restriction or restrictions were deleted,
restricted or limited in any particular manner (including without
limitation any reduction in their duration) then the said restrictions
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shall apply with such deletions, restrictions or limitations as the case
may be.
10.4 The undertakings contained in clause 10 are entered into by the parties
after having been separately legally advised.
11. CONFIDENTIALITY
It is a condition of this Agreement that its terms shall remain
confidential to the parties, the Executive's spouse (but only on terms
securing continuing confidentiality) and their legal successors and
their respective professional advisers. Except as agreed in this
Agreement or otherwise required by law, no statement or comment shall be
made by the parties or their respective employees or agents to any third
party in relation to the terms or existence of this Agreement.
12. CONFIDENTIAL INFORMATION
The Executive shall not at any time disclose to any person, or use for
the Executive's own purposes, or through lack of diligence cause the
unauthorised disclosure of any Confidential Information although this
restriction shall not apply to any Confidential Information coming into
the public domain other than as a result of any breach by the Executive
of this obligation.
13. WARRANTY
The Executive warrants that as at the date he signs this Agreement he
does not have and is not aware of his having any claim whatsoever
against the Company or any Group Company whether arising from his
employment or otherwise.
14. BREACH OF THE TERMS OF THIS AGREEMENT
The Executive acknowledges that any breaches of this Agreement will
entitle the Company to repayment of the Success Fee as well as any other
relief as may be just or appropriate.
15. ENTIRE AGREEMENT AND CONFLICTS
15.1 This Agreement sets out the entire agreement and understanding between
the parties and supersedes all prior agreements, understanding or
arrangements (whether oral or written) in respect of the subject matter
of this Agreement.
15.2 The Executive acknowledges that he has entered into this Agreement in
reliance only on the representations, warranties and promises
specifically contained or incorporated in this Agreement and, save as
expressly set out in this Agreement, neither the Company, any Group
Company or any of its or their employees, officers or agents shall have
any liability in respect of any other representation, warranty or
promise
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made prior to the date of this Agreement unless it was made
fraudulently.
16. JURISDICTION
This Agreement shall be governed by and construed in all respects in
accordance with the laws of England and Wales and each of the parties to
this Agreement irrevocably submits to the non exclusive jurisdiction of
the English courts.
In witness this Deed has been executed on the date appearing at the head
of page 1.
EXECUTED as a DEED by )
Andy Lown )
in the presence of: )
Signature of witness: /s/ WG WALLACE
Name: WG WALLACE
ADDRESS: 2A DENMARK TERRACE, FORTIS GREEN,
LONDON UK N29HG
EXECUTED as a Deed (but not )
delivered until the date )
appearing at the head of )
page 1) by MTS, Inc
Acting by: Michael T. Solomon )
Director
Director/Secretary
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SCHEDULE 1
COMPROMISE AGREEMENT
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WITHOUT PREJUDICE
This Agreement is made the 9 day of August 2002
BETWEEN:
(1) ANDY LOWN of 43A Chadeville Road, West Kensington, London W14 9JJ ("the
Executive")
(2) MTS Inc trading as Tower Records incorporated in California whose
principal place of business is at 2500 Del Monte Street, West
Sacramento, California 95961 ("THE COMPANY")
BACKGROUND:
(A) The Executive was employed by the Company as Senior Vice President and
Director of European Operations.
(B) The Executive asserts various claims against the Company arising out of
the termination of his employment including unfair dismissal contrary to
section 94 of the Employment Rights Act 1996 and breach of contract.
(C) The parties have agreed terms of settlement of such claims as set out in
this Agreement.
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
words have the following meanings:
"ADVISOR" the legal adviser referred to in clause 14.1;
"CONFIDENTIAL any trade secrets or other information which is
INFORMATION" confidential, commercially sensitive and is not in
the public domain relating or belonging to the
Company including but not limited to information
relating to the business methods, corporate plans,
management systems, finances, any information
concerning a third party or the Company's
restructuring proposals in Europe; new business
opportunities, research and development projects,
marketing or sales of any past, present or future
product or service, secret formulae, research and
experimental work, processes, inventions, designs,
know-how discoveries, technical
1
WITHOUT PREJUDICE
specifications and other technical information
relating to the creation, production or supply of
any past, present or future product or service of
the Company, lists or details of clients, potential
clients or suppliers or the arrangements made with
any client or supplier and any information in
respect of which the Company owes an obligation of
confidentiality to any third party;
"GROUP COMPANY" the Company and any holding company, subsidiary or
subsidiary of a holding company of the Company, the
terms "holding company" and "subsidiary" having the
meanings given to them in Section 736 Companies Act
1985;
"RETENTION The Retention Agreement made between the Executive
AGREEMENT" and the Company on or about 24 July 2002;
"RETAINED PROPERTY" all property belonging to the Company which it is
agreed in writing by the Company that the Executive
may retain as his absolute property as from the
Termination Date
"TERMINATION -; and
DATE"
"TERMINATION the payment referred to in clause 6.
PAYMENT"
1.2 In this agreement, unless the context otherwise requires:
(a) words in the singular include the plural and vice versa and
words in one gender include any other gender;
(b) a reference to a statute or statutory provision includes:
(i) any subordinate legislation (as defined in Section
21(1), Interpretation Act 1978) made under it;
(ii) any statute or statutory provision which modifies,
consolidates, re-enacts or supersedes it.
(c) a reference to:
(i) a "PERSON" includes any individual, firm, body
corporate, association or partnership, government or
state (whether or not having a separate legal
personality);
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WITHOUT PREJUDICE
(ii) "CLAUSES" and "SCHEDULES" is to clauses of and schedules
to this Agreement and references to sub-clauses and
paragraphs are references to sub-clauses and paragraphs
of the clause or schedule in which they appear;
(iii) "INDEMNIFY" and "INDEMNIFYING" any person against any
circumstance include indemnifying and keeping him
harmless from all actions, claims and proceedings from
time to time made against him and all loss or damage and
all payments, costs or expenses made or incurred by that
person as a consequence of or which would not have
arisen but for that circumstance.
(d) headings are for convenience only and shall not affect the
interpretation of this Agreement.
2 TERMINATION OF EMPLOYMENT
2.1 The Executive's employment with the Company will end on the Termination
Date. Up to and including the Termination Date, the Executive shall
remain employed by the Company on his existing terms and conditions of
employment which shall remain in full force and effect except as varied
by this Agreement.
2.2 It is agreed that the Executive shall be paid all his remaining accrued
but untaken annual leave entitlement for the period up to the
Termination Date and that no accrued holiday will be forfeit for failure
to take it prior to the Termination Date
3. PAY UP TO AND INCLUDING THE TERMINATION DATE
3.1 The Company will pay to the Executive on or before the Termination Date
his normal salary accrued to the Termination Date and all accrued but
untaken holiday entitlement subject to the deduction by the Company of
income tax in accordance with the Executive's PAYE tax coding and
primary class 1 National Insurance contributions.
3.2 The Company will continue to provide to the Executive up to the
Termination Date all benefits to which the Executive is entitled under
the Executive's contract of employment with the Company subject to the
rules of the schemes or plans.
4. SETTLEMENT OF CLAIMS
4.1 The terms set out in this Agreement have been agreed between the
Executive and the Company in full and final settlement of the claims the
Executive has alleged or may have against the Company, any Group Company
or any of its or their officers, employees or agents in respect of the
Executive's complaint of unfair dismissal contrary to section 94
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WITHOUT PREJUDICE
of the Employment Rights Act 1996 and any and all breaches of contract.
4.2 It is the further intention of the parties that the terms of this
Agreement shall be in full and final settlement of any other claims the
Executive has or may have against the Company, any Group Company or any
of its or their officers, employees or agents arising directly or
indirectly from the Executive's employment by the Company, and/or the
termination of such employment. Such claims may include (but are not
limited to) any claims the Executive may have at common law or under
United Kingdom or English and Welsh or applicable European Community
legislation in respect of
(a) unlawful deduction from wages under Part II of the Employment
Rights Act 1996;
(b) a redundancy payment (statutory or otherwise);
(c) sex, race or disability discrimination;
(d) equal pay;
(e) harassment under Section 3 Protection from Harassment Act 1997;
(f) breach of the Working Time Regulations 1998;
(g) breach of the Executive's rights in respect of accompaniment at
disciplinary or grievance hearings under s.10 - 12 Employment
Relations Act 1996;
(h) any claim in respect of the infringement of the statutory
employment rights set out in the Trade Union and Labour
Relations (Consolidation) Act 1992;
(i) any claim for breach of a right to time off under Reg 27
Transnational Information and Consultation Regulations 1999;
(j) breach of The Maternity and Parental Leave etc. Regulations
1999;
but expressly excluding any latent personal injury claim.
5. EXPENSES
The Company will pay to the Executive on or before the Termination Date,
reimbursement of expenses incurred by the Executive in the performance
of the Executive's duties on or before the Termination Date provided
that such expenses have been incurred and reclaimed in accordance with
the Company's expenses policy.
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WITHOUT PREJUDICE
6. TERMINATION PAYMENT
6.1 The Company shall pay to the Executive the whole or any balance
remaining payable together with accrued interest (if any) of the Success
Fee as defined in the Retention Agreement as compensation for loss of
employment, such payment to be made on the Termination Date.
6.2 The Termination Payment shall include payment in lieu of the Executive's
entitlement to 12 week's notice.
7. Tax
7.1 The Termination Payment will be paid subject to the deduction by the
Company of
(a) income tax in accordance with the Executive's PAYE tax coding on
the excess over the first L30,000 (subject to Inland Revenue
clearance); and
(b) to the extent applicable, primary class I National Insurance
contributions.
7.2
(a) The Company agrees to remit any PAYE deducted at source
forthwith to the UK Inland Revenue and to keep the Executive
fully indemnified against any demand for PAYE deducted by the
Company and not so remitted
(b) The Company makes no warranty as to the taxable status of the
Termination Payment and, accordingly, the Executive agrees to
indemnify and keep the Company indemnified against any PAYE
liability in respect of the payment of the Termination Payment
in excess of any deduction made by the Company at source in
respect of such liability.
(c) The Executive further agrees to indemnify and keep the Company
indemnified against any liability to primary Class I national
insurance contributions in respect of the Termination Payment in
excess of any deduction made by the Company at source in respect
of such liabilities.
8. EXECUTIVE'S WARRANTIES
8.1 The Executive, having taken independent legal advice, warrants that:
(a) except for any claim expressly set out or referred to in sub
clause 4.1 of this Agreement he has no claims whatsoever against
the Company, any Group Company or any of its officers, employees
or agents arising directly or indirectly from the
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Executive's employment by the Company and/or the termination of
the employment.
(b) the Executive has not (nor has anyone on his behalf) directly or
indirectly disclosed or divulged to any journalist, the press or
the media generally or otherwise attempted to make public, the
terms of this Agreement or the circumstances of his employment
with the Company or its termination;
(c) the Executive has not knowingly withheld nor failed to disclose
any material fact concerning the performance of his duties with
the Company which would have entitled the Company to dismiss him
summarily.
8.2 The Executive undertakes to repay to the Company the Termination Payment
immediately upon demand in the event that the Executive commences any
action, claim or proceedings in the Employment Tribunal or any other
court against the Company, any Group Company or any of its or their
officers, employees or agents in respect of any of the matters which are
the subject of the Executive's warranty under clause 8.1 or are settled
under the terms of clause 4.2 of this Agreement or if the Executive is
in breach of his obligations under clauses 9, 10, 11, or 12 of this
Agreement. The Executive agrees that in such circumstances, the
Termination Payment will be recoverable as a debt.
9. CONFIDENTIALITY
It is a condition of this Agreement that its terms shall remain
confidential to the parties and their legal and professional advisers.
Except as agreed in this Agreement or otherwise required by law, no
statement or comment shall be made by the parties or their respective
employees or agents to any third party in relation to the terms or
existence of this Agreement, the claims of the Executive settled by its
terms or the circumstances of the termination of the Executive's
employment.
10. CONFIDENTIAL INFORMATION
The Executive shall not at any time disclose to any person, or use for
the Executive's own purposes or for the purposes of any third party, or
through lack of diligence cause the unauthorised disclosure of any
Confidential Information, although this restriction shall not apply to
any Confidential Information which the Executive may be required to
disclose to a Court of competent jurisdiction or to a professional body
or because of professional regulations or which comes into the public
domain other than as a result of any breach by the Executive of this
obligation.
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11. COMPANY PROPERTY
11.1 The Executive warrants that, except for the Retained Property and any
item of Company property which the Executive is expressly permitted to
retain pursuant to this Agreement, all property belonging to the Company
or any Group Company which is in the possession or control of the
Executive has been returned to the Company in good working order.
11.2 The Executive further warrants that all information the Executive had in
his possession or under his control relating to the Company, any Group
Company or any of its or their clients or prospective clients by whom
and in whatever format recorded (whether electronically, on paper, on
audio or audio visual tape or otherwise) has been returned to the
Company or otherwise destroyed.
11.3 The Executive warrants that the Executive has not retained any copies of
the information referred to in clause 11.2, given any copies of the same
to any person or retained the ability to access the information.
12. RESTRICTIONS AND POST TERMINATION CO-OPERATION
12.1 The Executive acknowledges and confirms that he continues to be bound by
the Restrictions contained in clauses 9 and 10 of the Retention
Agreement.
12.2 The Executive acknowledges and confirms that he remains bound by the
terms included at clause 12 of the Retention Agreement.
13. Reference
13.1 The Company will following the signing of this Agreement supply the
Executive with a written reference in a form to be agreed between Andy
Lown and Mike Solomon and on reasonable request made by any third party
thereafter provide a fair and objective reference for the Executive. Any
request for a reference should be passed to Michael Solomon.
14. LEGAL ADVICE
14.1 The Executive confirms:
(a) that he has received independent legal advice from Susan-Jane
Davies, a qualified lawyer in the firm of Hammond Suddards Edge,
(solicitors) of 7 Devonshire Square, Cutlers Gardens, London
EC2M 4YH as to the terms and effect of this Agreement including
in particular, its effect on his ability to pursue any claim
before an Employment Tribunal;
(b) that the Advisor has advised him that there was in force when
the Advisor gave the advice referred to in sub-clause (a) a
contract or policy of insurance or indemnity covering the risk
of
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WITHOUT PREJUDICE
a claim by the Executive in respect of loss arising in
consequence of the advice; and
(c) that the Advisor will complete and provide to the Company within
7 days of the date of this Agreement a letter in the form set
out in Schedule I.
14.2 It is agreed that the conditions regulating compromise agreements under
sections 203(3) Employment Rights Act 1996, 77(4A) Sex Discrimination
Act 1975, 72(4A) Race Relations Act 1976 288(2B) Trade Union and Labour
Relations (Consolidation) Act 1992 Regulation 35 Working Time
Regulations 1998, s.9(3) Disability Discrimination Act 1995 and
Regulation 9 of the Part-time Workers (Prevention of Less Favourable
Treatment) Regulations 2000 are satisfied.
15. THIRD PARTIES
15.1 No term of this Agreement is enforceable pursuant to the Contracts
(Rights of Third Parties) Act 1999 by any person who is not a party to
it.
16. VARIATION
16.1 No purported variation of this Agreement shall be effective unless it is
in writing and signed by or on behalf of each of the parties.
17. ENTIRE AGREEMENT AND CONFLICTS
(a) This Agreement and the documents referred to herein sets out the
entire agreement and understanding between the parties and
supersedes all prior agreements, understanding or arrangements
(whether oral or written) in respect of the subject matter of
this Agreement.
(b) The Executive acknowledges that he has entered into this
Agreement in reliance only on the representations, warranties
and promises specifically contained or incorporated in this
Agreement and, save as expressly set out in this Agreement, none
of the Company, any Group Company or any of its or their
employees, officers or agents shall have any liability in
respect of any other representation, warranty or promise made
prior to the date of this Agreement unless it was made
fraudulently.
18. JURISDICTION
This Agreement shall be governed by and construed in all respects in
accordance with the laws of England and Wales and each of the parties to
this Agreement irrevocably submits to the non exclusive jurisdiction of
the English courts.
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THIS AGREEMENT has been signed on the date appearing at the head of page 1.
Signed by )
ANDY LOWN )
in the presence of: )
Signature of witness:
Name:
Address:
Signed by duly authorised signatory )
for and on behalf of )
MTS., INC TRADING as TOWER RECORDS )
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SCHEDULE I
TO BE TYPED ON THE HEADED PAPER OF THE EXECUTIVE'S SOLICITORS
MTS., Inc trading as Tower Records
2500 Del Monte Street
West Sacramento
California 95691
Dear Sirs
ANDY LOWN ("EXECUTIVE")
I, Susan-Jane Davies, a Solicitor in Hammond Suddards Edge of 7 Devonshire
Square, Cutlers Gardens, London. EC2M 4YH confirm that I have given independent
legal advice to Andy Lown of 43A Charleville Road, West Kensington, London W14
9JJ as to the terms and effect of the attached agreement of [date] and in
particular its effect on his ability to pursue his rights before an Employment
Tribunal.
I confirm that I am a solicitor in the Supreme Court holding a current
practising certificate and that I am independent of your company for whom I have
never acted and have no current expectation of activity. I further confirm that,
at the time I gave the advice referred to above, there was in force a an
indemnity covering the risk of a claim by the Executive in respect of any loss
arising in consequence of that advice.
Yours faithfully
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