DATED 6th MAY 1999
24STORE LIMITED
and
MARTIN CLARKE
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SERVICE AGREEMENT
--------------------------------------
PHILLIPS
Wolverton Court
15/16 London Street
Basingstoke
Hampshire RG21 7NT
Tel : (01256) 460830
Fax : (01256) 364333
THIS AGREEMENT is made on 6th May 1999
BETWEEN
(1) 24STORE LIMITED a company registered in England with number 3605559
whose registered office is at Cyberia House, Church Street, Basingstoke,
Hampshire, RG21 7QN ("the Company') and
(2) MARTIN CLARKE of Kingston N. Reading Road North, Fleet, Hampshire, GU13
8HR ("the Appointee")
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS
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In this Agreement:
(a) "Associated Company" means a company which is from time to time a
subsidiary or a holding company of the Company or a subsidiary, (other
than the Company) of a holding company of the Company. In this
definition "subsidiary" and "holding company" have the same meanings as
in Section 736 of the Companies Act 1985, as originally enacted; and
(b) the "Board" means the Board of Directors from time to time of the
Company.
(c) unless otherwise stated and except in clause 18 below, a reference to
the employment of the Appointee is to his employment by the Company,
under this Agreement.
(d) unless the context otherwise requires, words in the singular include the
plural and vice versa, and a reference to a person includes a reference
to a body, corporate and to an incorporated body of persons;
(e) a reference to a statute or statutory provisions includes a reference to
that statute or provision as from time to time modified or re-enacted.
2. APPOINTMENT AND TERM
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2.1 The Appointee will be employed by the Company as the joint Managing
Director of the Company.
2.2 His employment is deemed to have begun on 9th July 1990 and will
continue, subject to the terms of this Agreement until determined by,
either party giving to the other not less than six (6) months' written
notice expiring not earlier than two (2) years after the date hereof
2.3 The Appointee Warrants to the Company that by entering into these or any
other arrangements made or to be made between the Company or any
Associated Company and him, he will not be in breach of any, express or
implied terms of any contract with or other obligation to any third
party binding on him, including without limitation the provisions of any
restrictive covenants or confidentiality obligations, arising out of any
employment with any other employer or former employer.
3. DUTIES ETC.
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3.1 During the continuance of his employment the Appointee will
(a) perform such duties as may from time to time be assigned to him
by the board of directors of the Company, whether those duties
relate to the business of the Company or to the business of any
Associated Company;
(b) in all respects comply with directions given by or under the
authority of the Board;
(c) use all reasonable endeavours to promote the interests of the
Company; and
(d) unless prevented by incapacity, devote the whole of his time,
attention and ability during his agreed hours of work to the
performance of his duties under this Agreement.
PROVIDED ALWAYS that the Appointee shall not be expected to carry out
such duties which would not be in the normal course of business
considered to be commensurate with that of a Managing Director.
3.2 The agreed hours of work of the Appointee will be normal business hours
and such other hours as may be required for the proper performance of
his duties under this Agreement; and he will perform those duties at
such place or places in the United Kingdom as the Board may from time to
time determine but he shall not be required (except for occasional
visits in the ordinary course of his duties) to go to or reside in other
parts of the world.
4. SALARY
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4.1 During the continuance of his employment the Appointee will be entitled
to a salary at the rate of (pound)95,000 per annum (or such higher rate
as may from time to time be agreed between the parties).
4.2 The Appointee's salary will accrue from day to day, be payable by equal
monthly instalments on the last day of each month, and be inclusive of
any remuneration to which he may be or become entitled as a director of
the Company or of any of its subsidiaries or associates for the time
being.
4.3 The Appointee shall not be entitled to any other salary or fees as an
executive director or employee of the Company or any Associated Company
and the Appointee shall, as the Company may direct, either waive his
right to any such salary or fees or account for the same to the Company.
5. PENSION AND MEDICAL INSURANCE
-----------------------------
5.1 The Company will contribute the sum of(pound)1,000 (gross) per month to
the Appointee's pension scheme during the continuance of his employment.
5.2 The Company shall subscribe on behalf of and for the benefit of the
Appointee to a scheme providing benefits at such level as the Company
shall determine for medical and surgical treatment with BUPA or such
other comparable scheme which the Company may adopt from time to time.
If the Appointee, by notice in writing to the Company, so elects, the
Company shall arrange for the spouse and any child (including adopted
child) of the Appointee (for so long as such child has not attained the
age of 18) to be admitted to membership of the scheme.
6. EXPENSES
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6.1 The Company will reimburse the Appointee all reasonable travelling,
hotel. Entertainment and other out-of-pocket expenses (including all
costs associated with the use of his mobile phone) properly incurred by
him in the performance of his duties under this Agreement against
production by him to the Company of the relevant invoices and receipts.
6.2 Where the Company issues a company sponsored credit or charge card to
the Appointee he shall use such card only for those expenses which are
reimbursable pursuant to clause 6.1. The Company reserves the right in
its absolute discretion to withdraw the use of such card(s) from the
Appointee at any time without assigning any reason therefor.
7. HOLIDAYS
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The Appointee will be entitled to 25 days holiday in each calendar year,
to be taken at such times as may be reasonably approved by the Board, in
addition to public holidays. Except with the express approval of the
Board holidays may not be carried forward from one holiday year to the
next and no payment will be made by the Company (whether during the
continuance or on termination of this Agreement) in lieu of holidays not
taken.
8. SICKNESS AND INJURY
-------------------
8.1 If the Appointee is absent from work as a result of sickness or injury
he will:
(a) notify the Company by telephone as soon as practicable on the
first day of his absence;
(b) if the period of absence is less than eight consecutive calendar
days, submit to the Company on his return a certificate of
sickness completed by himself,
(c) if it is eight consecutive calendar days or more, submit to the
Company without delay a medical certificate signed by a
practising medical practitioner in respect of each week of
absence after the first.
8.2 The Appointee will, subject to compliance with clause 8.1 above and to
clause 14 below, be entitled to payment of his salary at the full rate
(less any social security or other benefits payable to him) during any
periods of absence from work as a result of sickness or injury up to a
maximum of 26 weeks in aggregate in any twelve consecutive months but he
will not be entitled to any payment of salary during any absence in
excess of that maximum.
8.3 The Company will pay statutory sick pay in accordance with the
legislation in force at the time of absence subject to the following
conditions:
(a) the Appointee must take all proper steps to claim any of and all
statutory sick pay and any national insurance or social security
benefit to which he is entitled.
(b) the Appointee may from time to time be required to produce the
certificate of a medical practitioner certifying the reason and
need for his absence and the Company will reimburse the
reasonable cost of any certificate so provided.
(c) payment of the Appointee's salary under clause 8.2 shall satisfy
any liability the Company may have to pay statutory sick pay
under the legislation from time to time in force;
(d) the qualifying days for payment of statutory sick pay are Monday
to Friday inclusive.
8.4 if the sickness or injury arises or occurs in circumstances giving rise
to a claim by the Appointee against a third party, any payment (save for
statutory sick pay) under this clause shall be regarded as a loan by the
Company to the Appointee and if at his absolute discretion he recovers
any damages from such third party (whether under a judgment of any court
or by agreement) he shall repay the Company the amount of such payment
provided however that if the claim is settled on a compromised basis for
less than its value on full liability or if any court awards the
Appointee less than such value on full liability and provided further
that the Appointee has taken all reasonable steps to recover from such
third party all earnings (save that such reasonable steps shall not
include the commencement of legal proceedings which shall be at the
Appointee's absolute discretion) (which, but for this sub-clause, he
would have lost) the Appointee shall not be obliged to repay more than
such proportion of such payment as the compromise settlement or court
award (as the case may be) bears to the value of his claim on full
liability.
8.5 Not more than once each calendar year the Appointee shall submit from
time to time on request by the Company to a medical examination by a
medical practitioner nominated by the Company and such medical
practitioner shall be authorised to disclose to, and discuss with, the
Company the results of any such examination (including the results of
any blood or other test made in the course thereof). The Company shall
be responsible for the fees and expenses of such medical practitioner.
9. INTERESTS IN OTHER BUSINESSES
-----------------------------
Save with the written consent of the Company, the Appointee will not
during the continuance of his employment be engaged or interested
(except as the owner of shares or other securities quoted or dealt in on
a recognised stock exchange) either directly or indirectly in any
business or occupation other than the business of the Company and its
subsidiaries and associates.
10. CONFIDENTIAL
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10.1 The Appointee will not during the continuance of his employment or
afterwards (unless authorised to do so by the Board or by a court of
competent jurisdiction):
(a) use for his own benefit or the benefit of any other person or
use to the detriment or prejudice of the Company or any
Associated Company; or
(b) except in the proper course of his duties, disclose to any
person;
any trade secrets or confidential information relating to the business,
affairs, products or processes of the Company or any of its Associated
Companies.
10.2 The restriction in this clause will not prevent the Appointee, after the
termination of his employment, from using for his own or another's
benefit any information which
(a) by virtue of his employment, becomes part of his own skill and
knowledge; and
(b) apart from the provisions of this Agreement, could lawfully, be
used by, him for that purpose;
but any such use will be subject to the restrictions contained in clause
11 below.
11. PROTECTION OF INTERESTS OF COMPANY ETC.
---------------------------------------
11.1 in this clause 11:
(a) "Restricted Business" means the business of the Company and the
Associated Companies at the time of the termination of the
Appointee's employment;
(b) "Restricted Customer" means any firm, company or other person
who during the period of twelve (12) months ending on the date
of the termination of the Appointee's employment, was a customer
of or in the habit of dealing with the Company or any Associated
Company and with whom the Appointee had contact in the course of
his employment; and
(c) "Restricted Employee" means any person who, at the date of the
termination of the Appointee's employment was an employee of the
Company or any Associated Company and who could materially
damage the interests of the Company or any Associated Company if
he became employed in any business concern in competition with
any Restricted Business.
11.2 The Appointee will not, for a period of twelve (12) months after the
termination of his employment, solicit or endeavour to entice away from
the Company or any Associated Company the business or custom of a
Restricted Customer with a view to providing services to that Restricted
Customer in competition with any Restricted Business.
11.3 The Appointee will not, for a period of twelve (12) months after the
termination of his employment, provide services to or otherwise have any
business dealings with any Restricted Customer in the course of any
business concern which is in competition with any Restricted Business.
11.4 The Appointee will not, for a period of twelve (12) months after the
termination of his employment, in the course of any business concern
which is in competition with any Restricted Business offer employment to
or otherwise endeavour to entice away from the Company or any Associated
Company any Restricted Employee.
11.5 The Appointee will not, for a period of twelve (12) months after the
termination of his employment, be engaged in or concerned in any
capacity, in any business concern which is in competition with any
Restricted Business. This clause shall not restrain the Appointee from
being engaged or concerned in any business concern in so far as the
Appointee's duties or work shall relate solely
(a) to geographical areas where the business concern is not in
competition with the Restricted Business; or
(b) to services or activities of a kind with which the Appointee was
not concerned to a material extent during the period of twelve
(12) months ending on the date of the termination of his
employment.
11.6 In this clause references to acting directly or indirectly include
(without prejudice to the generality of that expression) references to
acting alone or jointly with or on behalf of any other firm, company or
person,
11.7 If the Company requires the Appointee not to perform any of his duties
and/or excludes the Appointee from the Company's premises as set out in
clause 14.8 for some or all of any period of notice, the period of the
post-termination restrictions set out in this clause will be reduced by
the length of the garden leave served prior to the date on which the
Appointee's employment under this Agreement is terminated.
11.8 The Appointee agrees that the restrictions contained in this clause are
reasonable and necessary for the protection of the legitimate interests
of the Company and its Associated Companies. It is nevertheless agreed
that if any of those restrictions shall taken together or separately be
held to be void or ineffective for any reason but would be held to be
valid and effective if part of its wording were deleted, or the period
or area of application reduced, that restriction shall apply with such
deletions as may be necessary to make it valid and effective. The
Appointee further acknowledges that the restrictions contained in this
clause shall apply in relation to all Restricted Customers
notwithstanding that they may have been introduced to the Company or any
Associated Company by the Appointee before-or during or his employment
with the Company.
11.9 if the Company transfers all or any part of its business to a third
party ("the Transferee"), the restrictions contained in this clause
shall with effect from the Appointee becoming an employee of the
Transferee apply to the Appointee as if references to the Company
include the Transferee and references to any Associated Company mere
construed accordingly and as if references to Restricted Customers,
Restricted Employees and Restricted Business were construed accordingly.
11.10 The restrictions set out in this clause are without prejudice to other
express or implied duties, whether fiduciary or otherwise, owed by, the
Appointee to the Company or any Associated Company.
12. JOINT APPOINTMENT
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The Company will be entitled from time to time to appoint any other
person or persons to act jointly with the Appointee in the performance
of his duties.
13. EFFECT OF CEASING TO BE A DIRECTOR
----------------------------------
13.1 If during the continuance of his employment the Appointee ceases to be a
director/employee of the Company (otherwise than by resignation or
death) this Agreement (and his employment) will nevertheless continue
and will then have effect as if he were employed as a Manager instead of
a Managing Director PROVIDED ALWAYS that in ceasing to be a-director the
Appointee's rights under the Share Sale and Purchase Agreement dated 6th
May 1999 and made between the Appointee, Michael John Neame and the
Company ("the Agreement") shall not be effected.
13.2 If the Appointee shall voluntary cease to be employed by the Company the
Appointee hereby confirms that any sums then due and owing to the
Appointee under the Agreement shall be forfeited.
14. TERMINATION
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14.1 Either party will be entitled to terminate the employment of the
Appointee by giving notice to the other in accordance with clause 2
above.
14.2 The Company will be entitled to terminate the employment of the
Appointee without notice if:
(a) he converts a serious or persistent breach (whether by, one or
several acts or omissions) of his obligations under this
Agreement or his duties as a director of tile Company or any
Associated Company.
(b) he is guilty of serious misconduct or any other conduct tending
to bring himself or the Company into disrepute;
(c) he compounds with his creditors or a petition is presented for a
bankruptcy order in respect of him he petitions the Court for an
interim order under Section 252 of the Insolvency Act 1986;
(d) he is convicted of a criminal offence (other than a motoring
offence under the Road Traffic Acts from time to time in force
not involving a term of imprisonment).
(e) he ceases to hold any qualification, licence or other authors,
required (whether by statute or otherwise) for the proper
performance of his duties under this agreement;
(f) he is disqualified or prohibited by law from being a company,
director.
(g) he shall refuse or neglect to comply with any lawful and
reasonable orders given to him by the Company or any Associated
Company.
The Appointee shall have no claim against the Company by reason of such
termination.
If the Company becomes entitled to terminate the employment of the
Appointee under this clause 14.2 it shall be entitled (but without
prejudice to its rights subsequently to terminate the employment on the
same or any other ground) to suspend the Appointee with payment of
salary for such a time as is reasonable to investigate his position.
14.3 If the Appointee is incapacitated by ill health or otherwise from
carrying out his duties under this Agreement for a continuous period of
180 days or for an aggregate of 130 working days in any twelve
consecutive months, the Company will be entitled to terminate his
employment by not less than six (6) months' written notice.
14.4 The employment of the Appointee will terminate automatically on his
achieving the normal retirement age of the Company, which shall be not
less than the National Retirement Age.
14.5 On the termination of his employment for whatever reason the Appointee
will promptly:
(a) resign (if he has not already done so) from all offices held by
him in the Company and its subsidiaries and associates and
(b) deliver up to the Company, all lists of customers,
correspondence, documents and other property (including any car)
together with any written documentation (whether on paper or in
electronic format) belonging to the Company, or any Associated
Company which may be in his possession or under his control.
and the Appointee irrevocably authorises the Company in his name and on
his behalf to execute all documents and do all things necessary to
effect the resignations referred to above in the event of his failure to
do so.
14.6 Any termination of the employment of the Appointee will be without
prejudice to his continuing obligations under this Agreement.
14.7 1f either party gives notice to terminate the employment of the
Appointee and this Agreement, the Appointee agrees:
(a) that for a period not exceeding the period of notice in clause
2.2, the Board may in its absolute discretion require the
Appointee to perform only, such duties as it may reasonably
allocate to him or not to perform any of his duties and may
require him not to have any contact with clients or customers of
the Company or any Associated Company nor any contact (other
than purely social contact) with employees of the Company and
any Associated Company as the Board shall reasonably determine
and/or may exclude him from any premises of the Company), or of
any Associated Company;
(b) that such action taken on the part of the Company shall not
constitute a breach of this Agreement of any kind whatsoever nor
shall the Appointee have any, claim against the Company in
respect of any such action;
provided always that throughout the period of any such action the
Appointee's salary and contractual benefits shall not cease to be paid
or provided (unless and until his employment under this Agreement shall
be terminated).
14.8 Any delay or forbearance by the Company in exercising any right of
termination shall not constitute a waiver of it.
15. WAIVER OF RIGHTS
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If
(a) the employment of the Appointee is terminated:
(i) by reason of the liquidation of the Company for the
purpose of amalgamation or reconstruction: or
(ii) as part of any arrangement for the amalgamation of the
undertaking of the Company not involving liquidation or
for the transfer of the whole or part of the undertaking
of the Company to any of its subsidiaries or associates,
and
(b) the Appointee is offered employment of a similar nature with the
amalgamated or reconstructed or transferee company on terms not
generally less favourable to him than the terms of this
Agreement:
the Appointee will have no claim against the Company under this
Agreement in respect of that termination.
16. ADDITIONAL PARTICULARS
----------------------
16.1 The particulars required to be given by law are contained in the
schedule to this agreement.
16.2 Except as otherwise provided by, this Agreement, there are no terms or
conditions of employment relating to hours of work or to normal working
hours or to entitlement to holidays (including public holidays) or
holiday pay or to incapacity for work due to sickness or injury or to
pensions or pension schemes.
16.3 There are no disciplinary rules in force in relation to the Appointee,
who is expected at all times to conduct himself in a manner consistent
with his senior status.
16.4 if the Appointee has a grievance relating to his employment he should
first apply in person to the Chairman of the Company. If the matter is
not then settled the Appointee should write to the Board setting out
full details of the matter. The decision of the Board on such matter
shall be final.
16.5 The Appointee authorises the Company, to deduct and to retain from any
salary or other remuneration (including without limitation any payment
made to the Appointee in lieu of notice) accrued to him in consideration
of his employment by the Company (whether or not actually paid during
the continuance of his employment):
(a) any pension or other similar contributions owed by the Appointee
as a consequence of his membership of the pension scheme
referred to in clause 5; and
(b) any sum due from the Appointee to the Company or any Associated
Company.
17. ENTIRE AGREEMENT
----------------
Except as otherwise expressly provided by its terms, this Agreement
represents the entire understanding, and supersedes any previous
agreement, between the parties in relation to the employment of the
Appointee by the Company.
18. NOTICES
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Any notice to be given under this Agreement will be in writing and will
be deemed to be sufficiently served by one party, on the other if it is
either delivered personally or is sent by prepaid first class post and
addressed to the party to whom it is to be given, in the case of the
Appointee at his last known residence and in the case of the Company at
its registered office, and any such notice if so posted will be deemed
to have been served on the day (excluding Sundays and public holidays)
following that on which it was posted.
IN WITNESS whereof the parties have signed this Agreement.
THE SCHEDULE
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The following constitutes the statement of the particulars of the Appointee's
employment issued pursuant to the Employment Rights Act 1996. The particulars
are those which apply on the date of this agreement:
Name of employer - the Company as defined on page 1 above.
----------------
Name of employee - the Appointee as defined on page 1 above.
----------------
Date of commencement of employment - see clause 2.2.
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Date of commencement of continuous period of employment - no employment
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of the Appointee with a previous employer counts as part of his
continuous period of employment and his period of continuous employment
began on 9th July 1990.
Scale or rate of remuneration or method of calculating -
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remuneration see clause 4.
Intervals at which remuneration is paid - monthly - see clause 4.2.
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Hours of work - there are no fixed hours of work - see clause 3.2.
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Holidays (including public holidays) and holiday pay - see clause 7.
----------------------------------------------------
Sickness or injury and sick pay - see clause 8.
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Notice - see clause 2.2.
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Job title - Joint Managing Director.
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Place of work - see clause 3.2. The employer's address is as stated on
------------
page 1 above.
Collective Agreements - the Company is not a party to any collective
----------------------
agreement which affects the Appointee's employment.
Working Overseas - the Appointee is not under any obligation to work
-----------------
overseas for periods exceeding one month and accordingly there are no
particulars to be entered in this regard.
Discipline and grievance procedure - There are no specific disciplinary
----------------------------------
rules applicable to the Appointee's employment. If the Appointee is
dissatisfied with any disciplinary decision or seeks to redress any
grievance relating to his employment, he should apply in writing to the
Board and the Board will endeavour to propose a solution within 14
days.
SIGNED BY
FOR AND ON BEHALF OF
24STORE LIMITED in the /s/ Michael Baum
presence of: /s/ Karl-Magnus Karlsson
SIGNED AND DELIVERED AS
A DEED BY MARTIN CLARKE /s/ Martin Clarke
in the presence of:
/s/ Alex Preshaw
Solicitor
Basingstoke Hampshire