EXHIBIT 17
CONFORMED COPY
DEED OF RESTRICTIVE COVENANT
(1) Benjamin Blackden
(2) Professional Staff plc
Dated: 29th March 2001
CONFORMED COPY
CONTENTS
1. Definitions and interpretation............................................. 1
2. Covenants.................................................................. 3
3. Governing law and jurisdiction............................................. 6
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This Deed is made the 29th day of March 2001
BETWEEN:
(1) Benjamin Blackden of Cranford, Layters Way, Gerrards Cross, Bucks SL9 7
QZ ("Mr Blackden ");
(2) Professional Staff plc whose registered office is at Buckland House,
Waterside Drive, Langley Business Park, Slough, Berkshire SL3 6EZ ("the
Company");
BACKGROUND:
(A) Mr Blackden is appointed as the Company's non -executive Chairman with
effect from 1 April 2002 by letter dated 29th March 2001 ("the
Appointment").
(B) As consideration for the Company offering to make the Appointment Mr
Blackden has agreed to enter into this Deed.
It is agreed as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Deed, unless the context otherwise requires, the following words
have the following meanings:
"the Businesses" the businesses as carried on by every
Group Company or which any Group Company
shall have determined to carry on with a
view to profit in the foreseeable future and
with which Mr Blackden is materially
concerned during the course of the
Appointment
"Confidential any trade secrets or other information
Information" which is confidential, commercially
sensitive and is not in the public domain
relating or belonging to any Group Company
including but not limited to information
relating to the business methods, corporate
plans, management systems, finances, new
business opportunities, research and
development projects, marketing or sales of
any past, present or future product or
service, secret formulae, processes,
inventions, designs, know-how discoveries,
technical specifications and other technical
information relating to the creation,
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production or supply of any past, present or
future product or service of any Group
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 any Group Company owes an obligation
of confidentiality to any third party;
"Customer" any person:
with whom or which Mr Blackden has dealt or
of whom or of which he has knowledge by
virtue of his Appointment in the 6 months
preceding the Termination Date; and
either:
who or which shall at the Termination Date
be negotiating with any Group Company for
the provision of any Restricted Services; or
to whom or which any Group Company shall at
any time during the period of 6 months prior
to the Termination Date have supplied
Restricted Services;
"this Deed"" this Deed (including any schedule or
annexure to it and any document in agreed
form);
"Group Company" the Company, its subsidiary or subsidiary
undertakings, any holding company or parent
undertaking and any subsidiary or subsidiary
undertaking of any holding company or parent
undertaking and "Group Company" means any of
them;
"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;
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(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 Investment Exchange; or
(c) the direct or indirect provision of any
financial assistance;
"Restricted Services" services of a kind which have been
provided by any Group Company in the
ordinary course of the Businesses at any
time during the 6 months preceding the
Termination Date and with which provision Mr
Blackden was materially concerned; and
"Termination Date" the date on which the Appointment terminates
1.2 In this Deed, 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:
(i) a "person" includes any individual, firm, body
corporate, association or partnership, government or
state (whether or not having a separate legal
personality);
(ii) clauses and schedules are to clauses and schedules of
this Deed and references to sub-clauses and paragraphs
are references to sub-clauses and paragraphs of the
clause or schedule in which they appear;
(c) the headings are for convenience only and shall not affect the
interpretation of this Deed.
2. COVENANTS
In consideration of the appointment Mr Blackden undertakes and covenants
to the Company as follows:
2.1 During the Appointment, Mr Blackden shall not:
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(a) directly or indirectly disclose to any person or use other than
for any legitimate purposes of any Group Company any
Confidential Information;
(b) without the Board's prior written permission hold any Material
Interest in any person which:
(i) is or shall be wholly or partly in competition with any
of the Businesses;
(ii) impairs or might reasonably be thought by the Company to
impair Mr Blackden's ability to act at all times in the
best interests of any Group Company; or
(iii) requires or might reasonably be thought by the Company
to require Mr Blackden to disclose or make use of any
Confidential Information in order properly to discharge
Mr Blackden's duties to or to further Mr Blackden's
interest in that person;
(c) 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;
(d) at any time make any untrue or misleading statement in relation
to any Group Company;
(e) directly or indirectly receive or obtain in respect of any goods
or services sold or purchased or other business transacted
(whether or not by Mr Blackden) by or on behalf of any Group
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 Mr Blackden
or any person in which Mr Blackden holds any Material Interest
shall obtain any such discount, rebate, commission or
inducement, Mr Blackden shall immediately account to the Company
for the amount so received.
2.2 Mr Blackden shall, at any time during the Appointment or following its
termination at the request of any Group Company return to the relevant
Group Company or, at the relevant Group Company's request, shall
destroy:
(a) any documents, drawings, designs, computer files or software,
visual or audio tapes or other materials containing information
(including, without limitation, Confidential Information)
relating to any Group Company's business created by, in the
possession of or under the control of Mr Blackden; and
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(b) any other property of any Group Company in his possession or
under his control.
(c) Mr Blackden 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 paragraph (b) in any medium or form.
2.3 Mr Blackden shall not directly or indirectly for the period of 6 months
after the Termination Date be engaged on his own account or in the
capacity of employee, officer, consultant, adviser, partner, principal
or agent in any business or venture which:
(a) is or shall be in competition with any of the Businesses with
which Mr Blackden has been concerned or involved to any material
extent during the 12 months preceding the Termination Date, or
in relation to which Mr Blackden at the Termination Date
possesses confidential information; or
(b) requires or might reasonably be thought by the Company to
require Mr Blackden to disclose or make use of any Confidential
Information in order properly to discharge Mr Blackden's duties
to or to further Mr Blackden's interest in that person.
2.4 Mr Blackden shall not directly or indirectly, whether on his own behalf
or on behalf of another person
(a) for the period of 6 months after the Termination Date accept
orders for any Restricted Services from any Customer; or
(b) for the period of 6 months after the Termination Date:
(i) seek, canvass or solicit any business, orders or custom
for any Restricted Services from any Customer;
(ii) solicit or entice away or seek to entice away from any
Group 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 relevant Group Company in any of the Businesses in a
senior managerial, technical, supervisory, sales or
marketing capacity and was a person with whom Mr
Blackden dealt in the course of his duties to a Group
Company
(c) at any time after the Termination Date:
(i) induce or seek to induce by any means involving the
disclosure or use of Confidential Information any
Customer to cease dealing with any Group Company or to
restrict or vary the terms upon which it deals with the
relevant Group Company;
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(ii) be held out or represented by Mr Blackden or any other
person, as being in any way connected with or interested
in any Group Company; or
(iii) disclose to any person, or make use of any Confidential
Information.
2.5 Each undertaking contained in sub-clauses 2.1 to 2.4 shall be construed
as a separate and independent undertaking.
3. GOVERNING LAW AND JURISDICTION
3.1 This Deed shall be governed by and construed in accordance with English
law.
3.2 Each of the parties irrevocably submits for all purposes in connection
with this Agreement to the exclusive jurisdiction of the courts of
England.
This Deed has been executed on the date appearing at the head of page 1.
Executed as a Deed )
but not delivered until the date )
appearing at the head of page 1) by )
Professional Staff plc )
acting by ) Andrew Dixey
Director
) Adele Thorpe
Director/Secretary
Executed as a Deed by ) Benjamin Blackden
Benjamin Blackden )
in the presence of: ) Adele Thorpe
Signature of witness:
Name: Adele Thorpe
Address: Wilton Cottage, Puers Lane, Jordans,
Bucks, HP9 2TE
Occupation: Company Secretary
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SERVICE AGREEMENT
(1) Professional Staff plc
(2) Benjamin Blackden
Dated: 29th March 2001
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CONTENTS
1. Definitions and interpretation............................................ 1
2. Appointment............................................................... 3
3. Term...................................................................... 4
4. Duties of the Consultant Director......................................... 4
5. Hours of work............................................................. 4
6. Principal place of work................................................... 4
7. Salary.................................................................... 5
8. Expenses.................................................................. 5
8. Benefits.................................................................. 5
9. Holidays.................................................................. 6
10. Sickness or injury....................................................... 7
11. Termination of and suspension from Employment............................ 8
12. Obligations during Employment............................................ 10
13. Change of Control........................................................ 13
14. Obligations after Employment............................................. 15
15. Disciplinary and Grievance procedure..................................... 16
16. Collective Agreements.................................................... 16
17. Deductions............................................................... 16
18. General.................................................................. 17
19. Notices.................................................................. 17
20. Governing law and jurisdiction........................................... 17
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This Agreement is made the 29th day of March 2001
BETWEEN:
(1) Professional Staff Group plc whose registered office is at Buckland
House, Waterside Drive, Langley Business Park, Slough, Berkshire, SL3
6EZ ("the Company"); and
(2) Benjamin Blackden ("the Consultant Director ") of Cranford, Layters Way,
Gerrards Cross, Bucks, SL9 7 QZ.
It is agreed as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings:
"Agreement" this Agreement (including any schedule or
annexure to it and any document referred to
in it or in agreed form);
"Board" the board of directors of Professional
Staff Plc from time to time and includes any
committee of the Board duly appointed by it;
The provision of recruitment services to
"Businesses" specialised industries or other commercial
activity which is carried on by any Group
Company, or which any Group Company shall
have determined to carry on with a view to
profit in the immediate or foreseeable
future and with which the Consultant
Director is materially concerned during the
course of his appointment;
"Chief Executive" the Chief Executive of Professional
Staff plc from time to time who currently is
Andrew Dixey;
"Company Invention" any improvement, invention or discovery
made by the Consultant Director which in
accordance with Section 39, Patents Act 1977
is the property of the Company;
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"Confidential any trade secrets or other information
Information" which is confidential, commercially
sensitive and is not in the public domain
relating or belonging to any Group Company
including but not limited to information
relating to the business methods, corporate
plans, management systems, finances, new
business opportunities, research and
development projects, marketing or sales of
any past, present or future product or
service, secret formulae, 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 any Group
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 any Group Company owes an obligation
of confidentiality to any third party;
"Customer" any person:
(a) with whom or which the Consultant
Director has dealt or of whom or of
which he has knowledge by virtue of his
Duties in the 6 months preceding the
Termination Date; and
(b) either:
(i) who or which shall at the
Termination Date be negotiating
with any Group Company for the
provision of any Restricted
Services; or
(ii) to whom or which any Group
Company shall at any time during
the period of 6 months prior to
the Termination Date have
supplied Restricted Services;
"Duties" the duties of the Consultant Director as
set out in clause 4;
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"Employment" the Consultant Director's employment under
this Agreement;
"Group Companies" The Company, its subsidiaries or
subsidiary undertakings, any holding company
or parent undertaking and any subsidiary or
subsidiary undertaking of any holding
company or parent undertaking and "Group
Company" means any of them;
"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 Investment Exchange; or
(c) the direct or indirect provision of any
financial assistance;
"Recognised Investment as defined in Section 207 Financial Services
Exchange" Act 1986 and Nasdaq or any similar or
comparable exchange;
"Restricted Services" services of a kind which have been provided
by any Group Company in the ordinary course
of the Businesses at any time during the 6
months preceding the Termination Date and
with which provision the Consultant Director
was materially concerned;
"Termination Date" the date on which the Employment terminates.
2. APPOINTMENT
The Company appoints the Consultant Director as Consultant Director of
the Company on the terms set out in this Agreement.
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3. TERM
3.1 The Employment commences on 1 April 2001 and, unless terminated in
accordance with clause 12, shall continue until 31 March 2002 on which
date this Agreement shall terminate.
3.2 The Consultant Director's previous employment with the Company shall be
treated as part of the Consultant Director's continuous period of
employment, which accordingly began on 1 April 1990.
4. DUTIES OF THE CONSULTANT DIRECTOR
4.1 The Consultant Director shall not have an executive role or authority
but shall carry out such specific duties tasks and responsibilities as
may be assigned to or vested in him by the Chief Executive or by the
Board from time to time (whether or not commensurate with his position)
and exercise the powers consistent with such duties.
4.2 The Consultant Director shall at all times during the Employment:
(a) perform the Duties faithfully and diligently;
(b) obey all lawful and reasonable directions of the Chief Executive
or the Board, observe such restrictions or limitations as may
from time to time be imposed by the Chief Executive or the Board
upon the Consultant Director'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;
(c) use best endeavours to promote the interests of the Company and
any Group Company and shall not do or willingly permit to be
done anything which is harmful to those interests; and
(d) keep the Chief Executive and the Board fully informed (in
writing if so requested) of the Consultant Director's conduct of
the business or affairs of the Company and provide such
explanations as the Chief Executive or the Board may require.
5. HOURS OF WORK
5.1 The Consultant Director shall work one day a week at such times as are
agreed with the Chief Executive.
6. PRINCIPAL PLACE OF WORK
6.1 The Consultant Director's principal place of work shall be at the
Company's offices at Buckland House, Waterside Drive, Langley Business
Park, Slough, SL3 6EZ. The Company reserves the right to change the
Consultant Director's principal place of work to any other location
within the United Kingdom on giving reasonable prior notice to
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the Consultant Director.
6.2 The Consultant Director shall travel to and work on a temporary basis
from such locations within the UK and abroad as the Chief Executive or
the Board may reasonably require for the performance of his Duties.
6.3 There is no current requirement, as at the date of this agreement, for
the Consultant Director to work outside the United Kingdom for any
consecutive period of one month or more.
7. SALARY
7.1 The Company shall pay to the Consultant Director a salary of
(pound)50,000 per annum which shall accrue from day to day, and be
payable by equal monthly instalments in arrears, on or about the 27th
day of each month.
8. EXPENSES
The Company shall reimburse to the Consultant Director all expenses
reasonably and properly incurred by the Consultant Director in the
performance of the Duties (including business mileage for the motor car
referred to in clause 9.1). Each expense should be itemised at the end
of each month on the form provided, and receipts or other evidence of
expenditure should be attached.
9. BENEFITS
9.1 Motor car
(a) The Company shall provide the Consultant Director with a car of
a type appropriate (in the opinion of the Board) to the
Consultant Director's position in the Company for the use of the
Consultant Director in the performance of the Duties and for the
Consultant Director's personal use.
(b) The Company shall bear all taxing, insuring, maintaining,
repairing and running costs of the car attributable to the
Consultant Director's personal use of the car and any additional
costs incurred by the Consultant Director to use the car outside
the United Kingdom for his personal use. Business mileage should
be claimed through the Expenses procedure.
(c) The Consultant Director shall at all times maintain the car in a
good and roadworthy condition, ensure that the conditions of any
policy of insurance relating to it are observed and comply with
all regulations laid down by the Company or Board from time to
time with respect to company cars.
(d) The Consultant Director shall return the car, its keys,
registration papers, car alarms, car alarm codes, accessories
and any Company credit or cheque card provided exclusively for
the purchase of fuel to the Company at any time during the
Employment on demand
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and in any event immediately upon the Termination Date.
9.2 Mobile telephone
The Company shall provide a mobile telephone for the Consultant
Director's use in the performance of the Duties.
9.3 Pension
(a) The Company shall contribute a sum equivalent to 10% of the
Consultant Director's salary to a pension plan of the Consultant
Director's choice, subject to the Consultant Director also
contributing 5% of his salary.
(b) No contracting-out certificate pursuant to the Pension Schemes
Act 1993 is in force in respect of the Employment.
9.4 Insurance benefits
Subject to sub-clause 12.4(a), the Consultant Director shall be eligible
to participate in such of the following insurance schemes as the Company
may operate from time to time, subject always to the rules of the
relevant scheme:
(a) private medical expenses insurance scheme providing cover for
the Consultant Director, the Consultant Director's spouse and
dependent children:
(b) death in service insurance scheme providing life insurance cover
equivalent to 4 times the Consultant Director's salary.
Details of the Company's current insurance schemes are available from
the Company Secretary. The Company shall pay all premiums in respect of
the schemes and the Board may, in its absolute discretion, withdraw such
schemes or vary their terms and details from time to time.
10. HOLIDAYS
10.1 The Company's holiday year runs from 1 January to 31 December.
10.2 In addition to public or statutory holidays, the Consultant Director is
entitled to 5 days working days' paid holiday in each holiday year, to
be taken at such time or times as are agreed with the Chief Executive.
10.3 The Consultant Director may not, without the consent of the Chief
Executive carry forward any unused part of the holiday entitlement to a
subsequent holiday year. Except on termination of Employment, no payment
will be made in lieu of any unused holiday entitlement.
10.4 For the holiday year during which the Employment commences or
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terminates, the Consultant Director's entitlement to holiday accrues on
a pro rata basis for each complete month of the Employment during that
holiday year.
10.5 On termination of the Employment the Consultant Director shall be
entitled to pay in lieu of any outstanding holiday entitlement and shall
be required to repay to the Company any salary received for holiday
taken in excess of his actual entitlement. The basis for calculating the
payment and repayment shall be 1/260th of the Consultant Director's
annual basic salary (excluding bonus) for each day.
11. SICKNESS OR INJURY
11.1 If unable to perform the Duties due to sickness or injury the Consultant
Director shall report this fact as soon as possible on the first working
day of incapacity to the Chief Executive or to another member of the
Board, and provide, so far as practicable, an expected date of return to
work.
11.2 To be eligible for sick pay under clause 11.3, the Consultant Director
must supply the Company with such certification of sickness or injury as
the Company may require.
11.3 If, during the Employment, the Consultant Director shall be absent due
to sickness or injury duly certified in accordance with the Company's
requirements the Consultant Director may be paid full basic salary for
up to 12 weeks' absence in any period of 12 consecutive months and after
that, subject to sub-clause 11.4, such remuneration, if any, as the
Board shall determine from time to time.
11.4 Any remuneration paid under sub-clause 11.3 shall be inclusive of any
Statutory Sick Pay to which the Consultant Director is entitled or other
benefits recoverable by the Consultant Director (whether or not
recovered) which may be deducted from it.
11.5 Any outstanding or prospective entitlement to company sick pay in
accordance with clause 11.3, or medical insurance benefits shall not
prevent the Company from exercising its right to terminate the
Employment in accordance with clause 12.4 nor shall the Company be
liable to compensate the Consultant Director in respect of any such pay
or benefit.
11.6 At any time during the Employment, the Consultant Director shall, at the
request and expense of the Company:
(a) consent to an examination by a doctor to be selected by the
Company; and
(b) authorise this doctor to disclose to and discuss with the
Company's medical adviser, or other nominated officer of the
Company, the results of or any matter arising out of this
examination.
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12. TERMINATION OF AND SUSPENSION FROM EMPLOYMENT
12.1 Immediate dismissal
The Company may by written notice terminate the Employment without
notice or pay in lieu of notice if the Consultant Director:
(a) commits a material breach of the terms and conditions of this
agreement or repeats or continues (after a written warning) any
other breach of such terms and conditions, including any failure
to carry out the Duties efficiently, diligently or competently;
(b) commits any act of gross misconduct or is guilty of any conduct
which may in the reasonable opinion of the Board, bring any
Group Company into disrepute or is calculated or likely
prejudicially to affect the interests of any Group Company,
whether or not the conduct occurs during or in the context of
the Employment;
(c) is convicted of any criminal offence punishable with
imprisonment (other than an offence under road traffic
legislation in the United Kingdom or elsewhere for which he is
not sentenced to any term of imprisonment whether immediate or
suspended);
(d) commits any act of dishonesty relating to any Group Company, any
of its employees or otherwise;
(e) becomes prohibited by law from being a director, is removed from
office pursuant to the Company's articles of association, or,
except at the request of the Company or pursuant to clause 12.5,
resigns as a director;
(f) becomes of unsound mind or a patient within the meaning of the
Mental Health Act 1983 so that in the opinion of the Board he is
unable to perform the Duties; or
(g) becomes bankrupt or makes any arrangement or composition with
his creditors generally.
12.2 Suspension
In order to investigate a complaint against the Consultant Director of
misconduct the Board may suspend the Consultant Director on full pay for
so long as may be necessary to carry out a proper investigation and hold
any appropriate disciplinary hearing.
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12.3 Pay in lieu
On serving notice for any reason to terminate the Employment or at any
time during the currency of the notice the Board may elect (but shall
not be obliged) to terminate the Employment with immediate effect by
notifying the Consultant Director in writing that the Employment is
being terminated pursuant to this clause and undertaking, to pay to the
Consultant Director a sum equivalent to the Consultant Director's salary
for the unexpired portion of the Consultant Director's contractual
notice entitlement. The Company will pay the salary due and payable
under this sub-clause (subject to deduction of tax and national
insurance contributions at source) within 14 days after serving notice
of immediate termination under this clause
12.4 Garden leave
(a) After notice to terminate the Employment has been given by the
Consultant Director or the Company, the Board may for all or
part of the duration of the notice period in its absolute
discretion:
(i) require the Consultant Director to perform only such
duties (including without limitation research projects)
as it may allocate to the Consultant Director;
(ii) require the Consultant Director not to perform any of
the Duties;
(iii) require the Consultant Director not to have any contact
with clients of any Group Company;
(iv) require the Consultant Director not to have any contact
with such employees or suppliers of any Group Company as
the Board shall determine;
(v) require the Consultant Director to disclose any
attempted contact with him made by any client, employee
or supplier with whom the Consultant Director has been
required to have no contact pursuant to this clause;
(vi) require the Consultant Director to take any accrued
holiday entitlement or prohibit the Consultant Director
from taking any accrued holiday entitlement except with
the prior written approval of the Chief Executive; and
(vii) exclude the Consultant Director from any Group Company
premises and/or require the Consultant Director not to
visit the premises of the suppliers or customers of any
Group Company
provided always that throughout the period of any such action
and subject to the other provisions of this Agreement the
Consultant
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Director's salary and contractual benefits shall not cease to
accrue or be paid.
(b) The Consultant Director acknowledges 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 Consultant
Director have any claim against any Group Company in respect of
any such action and the Consultant Director agrees to remain
bound by the implied duty of fidelity and good faith.
(c) During any such period of garden leave the Consultant Director
shall remain readily contactable and available to work for the
Company. Should the Consultant Director fail to be available for
work at any time having been requested by the Company to do so,
the Consultant Director's right to salary and contractual
benefits in respect of such period of non-availability shall be
forfeit notwithstanding any other provision of this Agreement.
12.5 Effect of termination
On the Termination Date or (if earlier) at any time after notice is
given by the Company or the Consultant Director to terminate the
Employment, the Consultant Director shall, at the request of the
Company:
(a) resign (without prejudice to any claims which he may have
against the Company arising out of the Employment or its
termination) from his office of Consultant Director. and
(b) transfer without payment to the Company or as the Company may
direct any shares held by him for the purposes only of
fulfilling any requirement in the Company's articles of
association that a director holds shares in the Company and any
shares in any Group Company held by him on trust for any Group
Company
and if he should fail to do so within 7 days the Company is irrevocably
authorised to appoint some person in his name and on his behalf to sign
any documents or do any things necessary or requisite to effect such
resignation(s) and/or transfer(s).
13. OBLIGATIONS DURING EMPLOYMENT
13.1 Inventions
(a) The Consultant Director 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 Consultant
Director (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.
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(b) If the know-how, technique, process, improvement, invention or
discovery is a Company Invention, the Consultant Director shall
(to the extent that it does not automatically vest in the Group
Company by operation of law) hold it in trust for the Group
Company and, at the request and expense of the Group Company, do
all things necessary or desirable (including entering into any
agreement that the Group Company reasonably requires) to enable
the Group 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 or
discovery is not a Company Invention, the Group Company shall
treat all information disclosed to it by the Consultant Director
as confidential property of the Consultant Director.
(d) The patenting and exploitation of any Company Invention shall be
at the sole discretion of the Company.
13.2 Copyright etc
(a) The Consultant Director shall promptly disclose to the Group
Company all works including, without limitation, all copyright
works or designs originated, conceived, developed, written or
made by the Consultant Director 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
Group Company by operation of law) hold them in trust for the
Group Company until such rights have been fully and absolutely
vested in the Group Company.
(b) The Consultant Director assigns to the Company by way of future
assignment (to the extent not already vested in the Group
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
Consultant Director alone or with others during the Employment
which relate, or could relate, to the Businesses.
(c) The Consultant Director irrevocably and unconditionally waives
in favour of the Company any and all moral rights conferred on
the Consultant Director 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 Group
Company whether by sub-clause (b) or otherwise.
(d) The Consultant Director shall, 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 vest the rights referred to in this clause in the Company) to
substantiate
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the rights of the Company under sub-clauses (b) and (c).
13.3 Power of attorney
The Consultant Director 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 13.1(b) and 13.2(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 paragraph shall be conclusive
evidence that such is the case so far as any third party is concerned.
13.4 Share dealings etc
The Consultant Director shall comply, where relevant, with every rule of
law, every requirement of the London Stock Exchange Plc, Nasdaq, and the
United States Securities and Exchange Commission and every regulation of
the Company from time to time in force relating to dealings in shares,
debentures or other securities of any Group Company and, in relation to
overseas dealings, the Consultant Director shall also comply with all
laws of the state and all regulations of the stock exchange, market or
dealing system in which such dealings take place.
13.5 The Consultant Director shall not (and shall procure so far as he is
able that his spouse and children shall not) deal or become or cease to
be interested (within the meaning of Part I, Schedule 13, Companies Act
1985) in any securities of the Company without complying with any
Company rules or guidelines from time to time relating to securities
transactions by directors.
13.6 Conflict of interest
(a) During the Employment, the Consultant Director shall not:
(i) directly or indirectly disclose to any person or use
other than for any legitimate purposes of any Group
Company any Confidential Information;
(ii) without the Board's prior written permission hold any
Material Interest in any person which:
(A) is or shall be wholly or partly in competition
with any of the Businesses;
(B) impairs or might reasonably be thought by the
Company to impair the Consultant Director's
ability to act at all times in the best
interests of any Group Company; or
(C) requires or might reasonably be thought by the
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Company to require the Consultant Director to
disclose or make use of any Confidential
Information in order properly to discharge the
Consultant Director's duties to or to further
the Consultant Director'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 any Group Company;
(v) directly or indirectly receive or obtain in respect of
any goods or services sold or purchased or other
business transacted (whether or not by the Consultant
Director) by or on behalf of any Group 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 Consultant Director or any person in which the
Consultant Director holds any Material Interest shall
obtain any such discount, rebate, commission or
inducement, the Consultant Director shall immediately
account to the Company for the amount so received.
(b) The Consultant Director shall, at any time during the Employment
or following its termination at the request of any Group Company
return to the relevant Group Company or, at the relevant Group
Company's request, shall destroy:
(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 any Group
Company's business created by, in the possession of or
under the control of the Consultant Director; and
(ii) any other property of any Group Company in his
possession or under his control.
(c) The Consultant Director 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.
14. CHANGE OF CONTROL
14.1 A person has "Control" of a company if he holds, directly or indirectly,
shares which, together with shares held by any persons acting in concert
with him, carry 50% or more of the voting rights of
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that company and "Change in Control" shall be construed accordingly. In
the event of a hostile take-over offer being made to acquire all the
shares with voting rights in the Company within 12 months of the date of
this Agreement, then a Change of Control shall be deemed to have taken
place on the announcement by or on behalf of the hostile offeror (who
must also be a hostile offeror on the date of such announcement) that
such offer is or has become unconditional in all respects. This clause
14 will not apply in the event of a Change of Control which is
recommended to shareholders by a majority of the Board.
14.2 If, at any time during the period of 6 months following a hostile offer
becoming unconditional in all respects ("the Operative Period"), the
Consultant Director is either dismissed by the Company or the Consultant
Director serves notice in writing on the Company of his election to
treat the Change of Control as a breach of this Agreement before the
expiry of the Operative Period ("Special Notice"), then the Company
shall pay to the Consultant Director on the date on which either the
Consultant Director is served with notice of dismissal by the Company or
the Consultant Director serves a Special Notice, by way of liquidated
damages a sum equal to 2 years' salary ("the Severance Payment"). The
Severance Payment shall be the only payment which the Company shall make
to the Consultant Director as compensation for the termination of his
employment. If a Special Notice is not served by the Consultant Director
within the Operative Period, the Consultant Director shall be deemed to
have waived any breach of this Agreement pursuant to this clause 14 and
shall have no right or entitlement to the Severance Payment.
14.3 The payments to be made to the Consultant Director pursuant to this
clause 14 shall be subject to such deductions as the Company is obliged
to make by law. In the event of the Consultant Director becoming
entitled to receive the Severance Payment as provided for in this clause
14 the Consultant Director hereby agrees that he shall not be entitled
to any further or additional compensation of any kind and, in the event
of payment being made to the Consultant Director under this clause 14,
waives, releases and discharges any and all such rights and claims which
the Consultant Director may have against any Group Company under this
Agreement or arising as a consequence of its termination.
14.4 In the event of payment being made to the Consultant Director under this
clause 14, the Consultant Director shall resign forthwith from his
office as Consultant Director and at the request of the Company enter
into a written compromise agreement with the Company which meets the
requirements of section 203 of the Employment Rights Act 1996 (as
modified or re-enacted) and which compromises in full and final
settlement on the basis of the Severance Payment made under this clause
14 all or any statutory or contractual claims which the
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Consultant Director has or may have against the Company or any Group
Company arising from this Agreement save for any claims in respect of
the Consultant Director's accrued pension rights and any claim for
personal injury.
14.5 A Special Notice shall be of no effect if served at a time when the
Consultant Director has committed or is under investigation for acts or
omissions which would entitle the Company to dismiss the Consultant
Director instantly pursuant to sub- clause 12.1.
15. OBLIGATIONS AFTER EMPLOYMENT
In consideration of the Consultant Director's continued Employment under
this Agreement:
15.1 The Consultant Director shall not directly or indirectly for the period
of 6 months after the Termination Date be engaged on his own account or
in the capacity of employee, officer, consultant, adviser, partner,
principal or agent in any business or venture which:
(a) is or shall be in competition with any of the Businesses with
which the Consultant Director has been concerned or involved to
any material extent during the 12 months preceding the
Termination Date; or in relation to which the Consultant
Director at the Termination Date possesses confidential
information; or
(b) requires or might reasonably be thought by the Company to
require the Consultant Director to disclose or make use of any
Confidential Information in order properly to discharge the
Executive's duties to or to further the Consultant Director's
interest in that person.
15.2 The Consultant Director shall not directly or indirectly, whether on the
Consultant Director's own behalf or on behalf of another person:
(a) for the period of 6 months after the Termination Date accept
orders for any Restricted Services from any Customer; or
(b) for the period of 6 months after the Termination Date:
(i) seek, canvass or solicit any business, orders or custom
for any Restricted Services from any Customer;
(ii) solicit or entice away or seek to entice away from any
Group 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 relevant Group Company in any of the Businesses in a
senior managerial, technical, supervisory, sales or
marketing capacity and was a person with whom the
Consultant Director dealt in the course of the Duties
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(c) at any time after the Termination Date:
(i) induce or seek to induce by any means involving the
disclosure or use of Confidential Information any
Customer to cease dealing with any Group Company or to
restrict or vary the terms upon which it deals with the
relevant Group Company;
(ii) be held out or represented by the Consultant Director or
any other person, as being in any way connected with or
interested in any Group Company; or
(iii) disclose to any person, or make use of any Confidential
Information.
15.3 Undertakings
The Consultant Director has given the undertakings contained in this
clause 14 to the Company as trustee for itself and for each Group
Company in the business of which the Consultant Director shall be
involved or concerned to a material extent during the Employment. The
Consultant Director will at the request and cost of the Company enter
into direct undertakings with any such Group Company which correspond to
the undertakings in clause 15.
16. DISCIPLINARY AND GRIEVANCE PROCEDURE
16.1 There are no specific disciplinary rules or procedures applicable to the
Consultant Director. Any matters concerning the Consultant Director's
unsatisfactory conduct or performance will be dealt with by the Chief
Executive. An appeal against any disciplinary procedure should be made
by the Consultant Director in writing to the Board, whose decision will
be final.
16.2 If the Consultant Director has any grievance relating to his Employment
(other than one relating to a disciplinary decision) he should refer
such grievance to the Chief Executive and if the grievance is not
resolved by discussion with him it will be referred for resolution to
the Board, whose decision shall be final.
17. COLLECTIVE AGREEMENTS
There are no collective agreements which affect the terms and conditions
of the Consultant Director's employment.
18. DEDUCTIONS
The Consultant Director consents to the deduction at any time from any
salary or other sum due from the Company to the Consultant Director
including any payment on termination of employment, of any sum owed by
the Consultant Director to the Company.
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19. GENERAL
19.1 This Agreement sets out the entire agreement and understanding between
the parties and supersedes all prior agreements, understandings or
arrangements (oral or written) in respect of the employment or
engagement of the Consultant Director by the Company. 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.
19.2 No term in this Agreement is enforceable pursuant to the contracts
(Rights of Third Parties) Act 1999 by any person who is not a party to
it.
19.3 The Consultant Director consents to the holding and processing by the
Company (or any Group Company) of personal data (including, where
appropriate, sensitive personal data) relating to the Consultant
Director for the purposes of personnel and pensions administration,
employee management or compliance with any laws or regulations
applicable to any Group Company.
20. NOTICES
Any notice to a party under this Agreement shall be in writing signed by
or on behalf of the party giving it and shall, unless delivered to a
party personally, be hand delivered, or sent by prepaid first class post
or facsimile, with a confirmatory copy sent by prepaid first class post
to, in the case of the Consultant Director, the Consultant Director's
last known residential address or, in the case of the Company, the
Company Secretary at the Company's registered office.
21. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
English law.
This Agreement has been signed on the date appearing at the head of page 1.
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Executed as a Deed )
by Benjamin Blackden ) Benjamin Blackden
in the presence of: ) Adele Thorpe
Signature of witness:
Name: Adele Thorpe
Address: Wilton Cottage, Puers Lane, Jordans,
Bucks, HP9 2TE
Occupation: Company Secretary
Executed as a Deed )
(but not delivered until the date )
appearing at the head of page 1) )
by Professional Staff Group plc )
acting by: )
Andrew Dixey Director
Adele Thorpe Director/Secretary
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CHAIRMAN 'S SERVICE AGREEMENT
(1) Professional Staff plc
(2) Benjamin Blackden
Dated: 29th March 2001
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CONTENTS
1. Definitions and interpretation............................................ 1
2. Appointment............................................................... 3
3. Term...................................................................... 4
4. Duties of the Chairman.................................................... 4
5. Hours of work............................................................. 4
6. Principal place of work................................................... 4
7. Salary.................................................................... 4
8. Expenses.................................................................. 5
9. Benefits.................................................................. 5
10. Holidays................................................................. 5
11. Sickness or injury....................................................... 6
12. Termination of and suspension from Employment............................ 6
13. Obligations during Employment............................................ 9
14. Change of Control........................................................ 12
15. Obligations after Employment............................................. 14
16. Disciplinary and Grievance procedure..................................... 15
17. Collective Agreements.................................................... 15
18. Deductions............................................................... 15
19. General.................................................................. 15
20. Notices.................................................................. 16
21. Governing law and jurisdiction........................................... 16
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This Agreement is made the 29th day of March 2001
BETWEEN:
(1) Professional Staff Group plc whose registered office is at Buckland
House, Waterside Drive, Langley Business Park, Slough, Berkshire, SL3
6EZ ("the Company"); and
(2) Benjamin Blackden ("the Chairman") of Cranford, Layters Way, Gerrards
Cross, Bucks, SL9 7 QZ.
It is agreed as follows:
1. Definitions and interpretation
1.1 In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings:
"Agreement" this Agreement (including any schedule or
annexure to it and any document referred to
in it or in agreed form);
"Board" the board of directors of Professional Staff
Plc from time to time and includes any
committee of the Board duly appointed by it;
"Businesses" The provision of recruitment services to
specialised industries or other commercial
activity which is carried on by any Group
Company, or which any Group Company shall
have determined to carry on with a view to
profit in the immediate or foreseeable
future and with which the Chairman is
materially concerned during the course of
his appointment;
"Chief Executive" the Chief Executive of Professional Staff
plc from time to time who currently is
Andrew Dixey;
"Company Invention" any improvement, invention or discovery made
by the Chairman which in accordance with
Section 39, Patents Act 1977 is the property
of the Company;
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"Confidential any trade secrets or other information which
Information" is confidential, commercially sensitive and
is not in the public domain relating or
belonging to any Group Company including but
not limited to information relating to the
business methods, corporate plans,
management systems, finances, new business
opportunities, research and development
projects, marketing or sales of any past,
present or future product or service, secret
formulae, 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 any Group
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 any Group Company owes an obligation
of confidentiality to any third party;
"Customer" any person:
(a) with whom or which the Chairman has
dealt or of whom or of which he has
knowledge by virtue of his Duties in
the 6 months preceding the Termination
Date; and
(b) either:
(i) who or which shall at the
Termination Date be negotiating
with any Group Company for the
provision of any Restricted
Services; or
(ii) to whom or which any Group
Company shall at any time during
the period of 6 months prior to
the Termination Date have
supplied Restricted Services;
"Duties" the duties of the Chairman as set out in
clause 4;
"Employment" the Chairman's employment under this
Agreement;
"Group Companies" The Company, its subsidiaries or subsidiary
undertakings, any holding company or parent
undertaking and any subsidiary or subsidiary
undertaking of any holding company or parent
undertaking and "Group Company" means any of
them;
"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 Investment Exchange; or
(c) the direct or indirect provision of any
financial assistance;
"Recognised Investment as defined in Section 207 Financial Services
Exchange" Act 1986 and Nasdaq or any similar or
comparable exchange;
"Restricted Services" services of a kind which have
been provided by any Group Company in the
ordinary course of the Businesses at any
time during the 6 months preceding the
Termination Date and with which provision
the Chairman was materially concerned;
"Termination Date" the date on which the Employment terminates.
2. APPOINTMENT
The Company appoints the Chairman as Chairman of the Company on the
terms set out in this Agreement.
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3. TERM
3.1 The Employment commences on 1 April 2001 and, unless terminated in
accordance with clause 12, shall continue until 31 March 2002 on which
date this Agreement shall terminate.
3.2 The Chairman's previous employment with the Company shall be treated as
part of the Chairman's continuous period of employment, which
accordingly began on 1 April 1990.
4. DUTIES OF THE CHAIRMAN
4.1 The Chairman shall not have an executive role or authority but shall
carry out the normal duties tasks and responsibilities imposed by law
together with the specific functions and duties listed in Schedule 1 and
which may be varied from time to time by the Board.
4.2 The Chairman shall at all times during the Employment:
(a) perform the Duties faithfully and diligently;
(b) use best endeavours to promote the interests of the Company and
any Group Company and shall not do or willingly permit to be
done anything which is harmful to those interests; and
5. HOURS OF WORK
5.1 The Chairman shall be required to work one day a week at such times as
are agreed with the Chief Executive.
6. PRINCIPAL PLACE OF WORK
6.1 The Chairman's principal place of work shall be at the Company's offices
at Buckland House, Waterside Drive, Langley Business Park, Slough, SL3
6EZ. The Company reserves the right to change the Chairman's principal
place of work to any other location within the United Kingdom on giving
reasonable prior notice to the Chairman.
6.2 The Chairman shall travel to and work on a temporary basis from such
locations within the UK and abroad as the Chief Executive or the Board
may reasonably require for the performance of his Duties.
6.3 There is no current requirement, as at the date of this agreement, for
the Chairman to work outside the United Kingdom for any consecutive
period of one month or more.
7. SALARY
7.1 The Company shall pay to the Chairman a director's fee of (pound)40,000
per annum which shall accrue from day to day, be payable by equal
monthly instalments in arrears, on or about the 27th day of each month
and shall include any other fees to which the Chairman is entitled as a
director of
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any Group Company.
8. EXPENSES
The Company shall reimburse to the Chairman all expenses reasonably and
properly incurred by the Chairman in the performance of the Duties Each
expense should be itemised at the end of each month on the form
provided, and receipts or other evidence of expenditure should be
attached.
9. BENEFITS
9.1 Insurance benefits
The Chairman shall be eligible to participate in such of the following
insurance schemes as the Company may operate from time to time, subject
always to the rules of the relevant scheme:
(a) private medical expenses insurance scheme providing cover for
the Chairman, the Chairman's spouse and dependent children:
(b) death in service insurance scheme providing life insurance cover
equivalent to 4 times the Chairman's salary.
Details of the Company's current insurance schemes are available from
the Company Secretary. The Company shall pay all premiums in respect of
the schemes and the Board may, in its absolute discretion, withdraw such
schemes or vary their terms and details from time to time.
10. HOLIDAYS
10.1 The Company's holiday year runs from 1 January to 31 December.
10.2 In addition to public or statutory holidays, the Chairman is entitled to
5 days working days' paid holiday in each holiday year, to be taken at
such time or times as are agreed with the Board.
10.3 The Chairman may not, without the consent of the Board carry forward any
unused part of the holiday entitlement to a subsequent holiday year.
Except on termination of Employment, no payment will be made in lieu of
any unused holiday entitlement.
10.4 For the holiday year during which the Employment commences or
terminates, the Chairman's entitlement to holiday accrues on a pro rata
basis for each complete month of the Employment during that holiday
year.
10.5 On termination of the Employment the Chairman shall be entitled to pay
in lieu of any outstanding holiday entitlement and shall be required to
repay to the Company any salary received for holiday taken in excess of
his actual entitlement. The basis for calculating the payment and
repayment shall be 1/260th of the Chairman's annual fee for each day.
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11. SICKNESS OR INJURY
11.1 If unable to perform the Duties due to sickness or injury the Chairman
shall report this fact as soon as possible on the first working day of
incapacity to the Chief Executive or to another member of the Board, and
provide, so far as practicable, an expected date of return to work.
11.2 To be eligible for sick pay under clause 11.3, the Chairman must supply
the Company with such certification of sickness or injury as the Company
may require.
11.3 If, during the Employment, the Chairman shall be absent due to sickness
or injury duly certified in accordance with the Company's requirements
the Chairman may be paid his full fee for up to 12 weeks' absence in any
period of 12 consecutive months and after that, subject to sub-clause
11.4, such remuneration, if any, as the Board shall determine from time
to time.
11.4 Any remuneration paid under sub-clause 11.3 shall be inclusive of any
Statutory Sick Pay to which the Chairman is entitled or other benefits
recoverable by the Chairman (whether or not recovered) which may be
deducted from it.
11.5 Any outstanding or prospective entitlement to company sick pay in
accordance with clause 11.3, or medical insurance benefits shall not
prevent the Company from exercising its right to terminate the
Employment in accordance with clause 12.4 nor shall the Company be
liable to compensate the Chairman in respect of any such pay or benefit.
11.6 At any time during the Employment, the Chairman shall, at the request
and expense of the Company:
(a) consent to an examination by a doctor to be selected by the
Company; and
(b) authorise this doctor to disclose to and discuss with the
Company's medical adviser, or other nominated officer of the
Company, the results of or any matter arising out of this
examination.
12. TERMINATION OF AND SUSPENSION FROM EMPLOYMENT
12.1 Immediate dismissal
The Company may by written notice terminate the Employment without
notice or pay in lieu of notice if the Chairman:
(a) commits a material breach of the terms and conditions of this
agreement or repeats or continues (after a written warning) any
other breach of such terms and conditions, including any failure
to carry out the Duties efficiently, diligently or competently;
(b) commits any act of gross misconduct or is guilty of any conduct
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which may in the reasonable opinion of the Board, bring any
Group Company into disrepute or is calculated or likely
prejudicially to affect the interests of any Group Company,
whether or not the conduct occurs during or in the context of
the Employment;
(c) is convicted of any criminal offence punishable with
imprisonment (other than an offence under road traffic
legislation in the United Kingdom or elsewhere for which he is
not sentenced to any term of imprisonment whether immediate or
suspended);
(d) commits any act of dishonesty relating to any Group Company, any
of its employees or otherwise;
(e) becomes prohibited by law from being a director, is removed from
office pursuant to the Company's articles of association, or,
except at the request of the Company or pursuant to clause 11.7,
resigns as a director;
(f) becomes of unsound mind or a patient within the meaning of the
Mental Health Act 1983 so that in the opinion of the Board he is
unable to perform the Duties; or
(g) becomes bankrupt or makes any arrangement or composition with
his creditors generally.
12.2 Suspension
In order to investigate a complaint against the Chairman of misconduct
the Board may suspend the Chairman on full pay for so long as may be
necessary to carry out a proper investigation and hold any appropriate
disciplinary hearing.
12.3 Dismissal due to ill-health
(a) Notwithstanding clauses 9.1 and 11.3, if the Chairman is
incapable of performing the Duties due to ill health or accident
for a period or periods aggregating at least 3 months in any
period of 12 months the Company may, by not less than 1 months'
prior written notice given at any time whilst such incapacity
continues and subject to sub-clause (b), terminate the
Employment.
(b) Upon termination of Employment under this sub-clause the
Chairman shall cease to be entitled to any payment under
sub-clause 11.3 or any other provision of this Agreement.
12.4 Pay in lieu
On serving notice for any reason to terminate the Employment or at any
time during the currency of the notice the Board may elect (but shall
not be obliged) to terminate the Employment with immediate effect by
notifying the Chairman in writing that the Employment is
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being terminated pursuant to this clause and undertaking, to pay to the
Chairman a sum equivalent to the Chairman's salary for the unexpired
portion of the Chairman's contractual notice entitlement. The Company
will pay the salary due and payable under this sub-clause (subject to
deduction of tax and national insurance contributions at source) within
14 days after serving notice of immediate termination under this clause
12.5 Garden leave
(a) After notice to terminate the Employment has been given by the
Chairman or the Company, the Board may for all or part of the
duration of the notice period in its absolute discretion:
(i) require the Chairman to perform only such duties
(including without limitation research projects) as it
may allocate to the Chairman;
(ii) require the Chairman not to perform any of the Duties;
(iii) require the Chairman not to have any contact with
clients of any Group Company;
(iv) require the Chairman not to have any contact with such
employees or suppliers of any Group Company as the Board
shall determine;
(v) require the Chairman to disclose any attempted contact
with him made by any client, employee or supplier with
whom the Chairman has been required to have no contact
pursuant to this clause;
(vi) require the Chairman to take any accrued holiday
entitlement or prohibit the Chairman from taking any
accrued holiday entitlement except with the prior
written approval of the Chief Executive; and
(vii) exclude the Chairman from any Group Company premises
and/or require the Chairman not to visit the premises of
the suppliers or customers of any Group Company
provided always that throughout the period of any such action
and subject to the other provisions of this Agreement the
Chairman's salary and contractual benefits shall not cease to
accrue or be paid.
(b) The Chairman acknowledges 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 Chairman have any claim
against any Group Company in respect of any such action and the
Chairman agrees to remain bound by the implied duty of fidelity
and good faith.
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(c) During any such period of garden leave the Chairman shall remain
readily contactable and available to work for the Company.
Should the Chairman fail to be available for work at any time
having been requested by the Company to do so, the Chairman's
right to salary and contractual benefits in respect of such
period of non-availability shall be forfeit notwithstanding any
other provision of this Agreement.
12.6 Effect of termination
On the Termination Date or (if earlier) at any time after notice is
given by the Company or the Chairman to terminate the Employment, the
Chairman shall, at the request of the Company:
(a) resign (without prejudice to any claims which he may have
against the Company arising out of the Employment or its
termination) from all and any offices which he may hold as a
director of any Group Company and from all other appointments or
offices which he holds as nominee or representative of any Group
Company; and
(b) transfer without payment to the Company or as the Company may
direct any shares held by him for the purposes only of
fulfilling any requirement in the Company's articles of
association that a director holds shares in the Company and any
shares in any Group Company held by him on trust for any Group
Company
and if he should fail to do so within 7 days the Company is irrevocably
authorised to appoint some person in his name and on his behalf to sign
any documents or do any things necessary or requisite to effect such
resignation(s) and/or transfer(s).
13. OBLIGATIONS DURING EMPLOYMENT
13.1 Inventions
(a) The Chairman 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 Chairman
(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 Chairman shall (to the
extent that it does not automatically vest in the Group Company
by operation of law) hold it in trust for the Group Company and,
at the request and expense of the Group Company, do all things
necessary or desirable (including entering into any agreement
that
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the Group Company reasonably requires) to enable the Group
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 or
discovery is not a Company Invention, the Group Company shall
treat all information disclosed to it by the Chairman as
confidential property of the Chairman.
(d) The patenting and exploitation of any Company Invention shall be
at the sole discretion of the Company.
13.2 Copyright etc
(a) The Chairman shall promptly disclose to the Group Company all
works including, without limitation, all copyright works or
designs originated, conceived, developed, written or made by the
Chairman 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 Group Company
by operation of law) hold them in trust for the Group Company
until such rights have been fully and absolutely vested in the
Group Company.
(b) The Chairman assigns to the Company by way of future assignment
(to the extent not already vested in the Group 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 Chairman alone or
with others during the Employment which relate, or could relate,
to the Businesses.
(c) The Chairman irrevocably and unconditionally waives in favour of
the Company any and all moral rights conferred on the Chairman
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 Group Company whether by sub-clause
(b) or otherwise.
(d) The Chairman shall, 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 vest the
rights referred to in this clause in the Company) to
substantiate the rights of the Company under sub-clauses (b) and
(c).
13.3 Power of attorney
The Chairman irrevocably appoints the Company as his attorney in his
name and on his behalf to execute documents, to use his name and to do
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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 12.1(b) and 12.2(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 paragraph shall be conclusive
evidence that such is the case so far as any third party is concerned.
13.4 Share dealings etc
The Chairman shall comply, where relevant, with every rule of law, every
requirement of the London Stock Exchange Plc, Nasdaq, and the United
States Securities and Exchange Commission and every regulation of the
Company from time to time in force relating to dealings in shares,
debentures or other securities of any Group Company and, in relation to
overseas dealings, the Chairman shall also comply with all laws of the
state and all regulations of the stock exchange, market or dealing
system in which such dealings take place.
13.5 The Chairman shall not (and shall procure so far as he is able that his
spouse and children shall not) deal or become or cease to be interested
(within the meaning of Part I, Schedule 13, Companies Act 1985) in any
securities of the Company without complying with any Company rules or
guidelines from time to time relating to securities transactions by
directors.
13.6 Conflict of interest
(a) During the Employment, the Chairman shall not:
(i) directly or indirectly disclose to any person or use
other than for any legitimate purposes of any Group
Company any Confidential Information;
(ii) without the Board's prior written permission hold any
Material Interest in any person which:
(A) is or shall be wholly or partly in competition
with any of the Businesses;
(B) impairs or might reasonably be thought by the
Company to impair the Chairman's ability to act
at all times in the best interests of any Group
Company; or
(C) requires or might reasonably be thought by the
Company to require the Chairman to disclose or
make use of any Confidential Information in
order properly to discharge the Chairman's
duties to or to further the Chairman's interest
in that person;
(iii) at any time (whether during or outside normal working
hours) take any preparatory steps to become engaged or
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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 any Group Company;
(v) directly or indirectly receive or obtain in respect of
any goods or services sold or purchased or other
business transacted (whether or not by the Chairman) by
or on behalf of any Group 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 Chairman or any
person in which the Chairman holds any Material Interest
shall obtain any such discount, rebate, commission or
inducement, the Chairman shall immediately account to
the Company for the amount so received.
(b) The Chairman shall, at any time during the Employment or
following its termination at the request of any Group Company
return to the relevant Group Company or, at the relevant Group
Company's request, shall destroy:
(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 any Group
Company's business created by, in the possession of or
under the control of the Chairman; and
(ii) any other property of any Group Company in his
possession or under his control.
(c) The Chairman 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.
14. CHANGE OF CONTROL
14.1 A person has "Control" of a company if he holds, directly or indirectly,
shares which, together with shares held by any persons acting in concert
with him, carry 50% or more of the voting rights of that company and
"Change in Control" shall be construed accordingly. In the event of a
hostile take-over offer being made to acquire all the shares with voting
rights in the Company within 12 months of the date of this Agreement,
then a Change of Control shall be deemed to have taken place on the
announcement by or on behalf of the hostile offeror (who must also be a
hostile offeror on the date of such announcement) that such offer is or
has become unconditional in all respects. This clause 14 will not apply
in the event of a Change of
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Control which is recommended to shareholders by a majority of the Board.
14.2 If, at any time during the period of 6 months following a hostile offer
becoming unconditional in all respects ("the Operative Period"), the
Chairman is either dismissed by the Company or the Chairman serves
notice in writing on the Company of his election to treat the Change of
Control as a breach of this Agreement before the expiry of the Operative
Period ("Special Notice"), then the Company shall pay to the Chairman on
the date on which either the Chairman is served with notice of dismissal
by the Company or the Chairman serves a Special Notice, by way of
liquidated damages a sum equal to 2 years' salary ("the Severance
Payment"). The Severance Payment shall be the only payment which the
Company shall make to the Chairman as compensation for the termination
of his employment and for the termination of any office which he holds
in any Group Company. If a Special Notice is not served by the Chairman
within the Operative Period, the Chairman shall be deemed to have waived
any breach of this Agreement pursuant to this clause 14 and shall have
no right or entitlement to the Severance Payment.
14.3 The payments to be made to the Chairman pursuant to this clause 14 shall
be subject to such deductions as the Company is obliged to make by law.
In the event of the Chairman becoming entitled to receive the Severance
Payment as provided for in this clause 14 the Chairman hereby agrees
that he shall not be entitled to any further or additional compensation
of any kind whatsoever and, in the event of payment being made to the
Chairman under this clause 14, waives, releases and discharges any and
all such rights and claims which the Chairman may have against any Group
Company under this Agreement or arising as a consequence of its
termination.
14.4 In the event of payment being made to the Chairman under this clause 14,
the Chairman shall resign forthwith from all office holdings and at the
request of the Company enter into a written compromise agreement with
the Company which meets the requirements of section 203 of the
Employment Rights Act 1996 (as modified or re-enacted) and which
compromises in full and final settlement on the basis of the Severance
Payment made under this clause 14 all or any statutory or contractual
claims which the Chairman has or may have against the Company or any
Group Company arising from this Agreement save for any claims in respect
of the Chairman's accrued pension rights and any claim for personal
injury.
14.5 A Special Notice shall be of no effect if served at a time when the
Chairman has committed or is under investigation for acts or omissions
which would entitle the Company to dismiss the Chairman instantly
pursuant to sub- clause 12.1.
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15. OBLIGATIONS AFTER EMPLOYMENT
In consideration of the Chairman's continued Employment under this
Agreement:
15.1 The Chairman shall not directly or indirectly for the period of 6 months
after the Termination Date be engaged on his own account or in the
capacity of employee, officer, consultant, adviser, partner, principal
or agent in any business or venture which:
(a) is or shall be in competition with any of the Businesses with
which the Chairman has been concerned or involved to any
material extent during the 12 months preceding the Termination
Date; or in relation to which the Chairman at the Termination
Date possesses confidential information; or
(b) requires or might reasonably be thought by the Company to
require the Chairman to disclose or make use of any Confidential
Information in order properly to discharge the Executive's
duties to or to further the Chairman's interest in that person.
15.2 The Chairman shall not directly or indirectly, whether on the Chairman's
own behalf or on behalf of another person:
(a) for the period of 6 months after the Termination Date accept
orders for any Restricted Services from any Customer; or
(b) for the period of 6 months after the Termination Date:
(i) seek, canvass or solicit any business, orders or custom
for any Restricted Services from any Customer;
(ii) solicit or entice away or seek to entice away from any
Group 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 relevant Group Company in any of the Businesses in a
senior managerial, technical, supervisory, sales or
marketing capacity and was a person with whom the
Chairman dealt in the course of the Duties
(c) at any time after the Termination Date:
(i) induce or seek to induce by any means involving the
disclosure or use of Confidential Information any
Customer to cease dealing with any Group Company or to
restrict or vary the terms upon which it deals with the
relevant Group Company;
(ii) be held out or represented by the Chairman or any other
person, as being in any way connected with or interested
in any Group Company; or
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(iii) disclose to any person, or make use of any Confidential
Information.
15.3 Undertakings
The Chairman has given the undertakings contained in this clause 15 to
the Company as trustee for itself and for each Group Company in the
business of which the Chairman shall be involved or concerned to a
material extent during the Employment. The Chairman will at the request
and cost of the Company enter into direct undertakings with any such
Group Company which correspond to the undertakings in clause 15.
16. DISCIPLINARY AND GRIEVANCE PROCEDURE
16.1 There are no specific disciplinary rules or procedures applicable to the
Chairman. Any matters concerning the Chairman's unsatisfactory conduct
or performance will be dealt with by the Chief Executive. An appeal
against any disciplinary procedure should be made by the Chairman in
writing to the Board, whose decision will be final.
16.2 If the Chairman has any grievance relating to his Employment (other than
one relating to a disciplinary decision) he should refer such grievance
to the Chief Executive and if the grievance is not resolved by
discussion with him it will be referred for resolution to the Board,
whose decision shall be final.
17. COLLECTIVE AGREEMENTS
There are no collective agreements which affect the terms and conditions
of the Chairman's employment.
18. DEDUCTIONS
The Chairman consents to the deduction at any time from any salary or
other sum due from the Company to the Chairman including any payment on
termination of employment, of any sum owed by the Chairman to the
Company.
19. GENERAL
19.1 This Agreement sets out the entire agreement and understanding between
the parties and supersedes all prior agreements, understandings or
arrangements (oral or written) in respect of the employment or
engagement of the Chairman by the Company. 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.
19.2 No term in this Agreement is enforceable pursuant to the contracts
(Rights of Third Parties) Act 1999 by any person who is not a party to
it.
19.3 The Chairman consents to the holding and processing by the Company (or
any Group Company) of personal data (including, where appropriate,
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sensitive personal data) relating to the Chairman for the purposes of
personnel and pensions administration, employee management or compliance
with any laws or regulations applicable to any Group Company.
20. NOTICES
Any notice to a party under this Agreement shall be in writing signed by
or on behalf of the party giving it and shall, unless delivered to a
party personally, be hand delivered, or sent by prepaid first class post
or facsimile, with a confirmatory copy sent by prepaid first class post
to, in the case of the Chairman, the Chairman's last known residential
address or, in the case of the Company, the Company Secretary at the
Company's registered office.
21. GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with
English law.
This Agreement has been signed on the date appearing at the head of page 1.
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Schedule 1
Duties of Chairman
(a) to attend monthly board meetings on dates to be notified to you
in advance;
(b) to attend the Company's annual general meeting to be held each
year ;
(c) to attend any extraordinary general meetings or emergency board
meetings which might be called from time to time;
(d) to overview the performance of the Company and, on behalf of the
Board, to be the individual to whom the Chief Executive reports;
(e) in the initial stages particularly, to help the Chief Executive
assimilate the dynamics of the staffing and recruitment
industries. In the initial period also, to inform the Chief
Executive of all aspects of trading, operations, markets,
competitive position and management of the operating companies,
as well as (with the Group Finance Director) their past, current
and projected performance;
(f) to act as guide, mentor, adviser and counsel to the Chief
Executive, to act as 'sounding board' and to act in these
capacities in such a way as to ensure the successful development
of strategy and its successful execution through a successful
Chief Executive;
(g) to chair board meetings and, through the Chief Executive and his
staff, to ensure that corporate governance is maintained to best
practice, including composition of the Board and establishment
and role of Board committees;
(h) to liaise with all the independent directors and to assist them
in their understanding of the Company, its strategy and its
operating performance. To chair the Annual General Meeting and
any Extraordinary General Meetings of Shareholders;
(i) to assist the Chief Executive and Group Finance Director in
presenting the Company to its shareholders and, as necessary, to
its professional advisers and other interested parties;
(j) to establish and maintain contacts within the wider context for
the benefit of the Company: the public and private staffing and
recruitment industries; industry bodies and institutions; City
and other relevant institutions. To be available at the request
of the Chief Executive for any and all such contacts as may be
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initiated and/or desired by him;
(k) to discuss the performance of the Company with the Chief
Executive monthly;
(l) to ensure that the Chief Executive has at all times clear
authority and terms of reference and, insofar as possible, that
the Chief Executive has the necessary facilities and resources
to execute his terms of reference;
(m) to report to the independent directors on the progress and
performance of the Chief Executive;
(n) to carry out such other functions and duties as may be required
of you from time to time.
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Executed as a Deed )
by Benjamin Blackden ) Benjamin Blackden
in the presence of: ) Adele Thorpe
Signature of witness:
Name: Adele Thorpe
Address: Wilton Cottage, Puers Lane, Jordans,
Bucks, HP9 2TE
Occupation: Company Secretary
Executed as a Deed )
(but not delivered until the date )
appearing at the head of page 1) )
by Professional Staff Group plc )
acting by: )
Andrew Dixey Director
Adele Thorpe Director/Secretary
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CONSULTANCY AGREEMENT
(1) Benjamin Blackden
(2) Professional Staff plc
Dated: 29th March 2001
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CONTENTS
1. Definitions and interpretation.......................................... 1
2. Appointment............................................................. 4
3. Term of appointment..................................................... 4
4. Consultancy services.................................................... 4
5. Commitment.............................................................. 5
6. Fee..................................................................... 5
7. Termination of appointment.............................................. 6
8. Change of Control....................................................... 6
9. Acknowledgement by the Consultant....................................... 7
10. Obligations............................................................. 8
11. Nature of consultancy................................................... 11
12. Office facilities....................................................... 11
13. General................................................................. 11
14. Notices................................................................. 13
15. Governing law and jurisdiction.......................................... 13
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This Agreement is made the 29th day of March 2001
BETWEEN:
(1) Professional Staff plc whose registered office is at Buckland House,
Waterside Drive, Langley Business Park, Slough, Berkshire SL3 6EZ ("the
Company"); and
(2) Benjamin Blackden of Cranford, Layters Way, Gerrards Cross,
Buckinghamshire SL9 7QZ ("the Consultant").
It is agreed as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
words shall have the following meaning:
"this Agreement" this Agreement (including any schedule or
annexure to it and any document in agreed
form);
"the Board" the board of directors of the Company from
time to time and includes any committee of
the board of directors duly appointed by it;
"Business day" a day (other than a Saturday or a Sunday) on
which clearing banks are open for business
in the City of London;
"Businesses" all and any trades or other commercial
activities of the Group:
(a) with which the Consultant shall have
been concerned or involved to any
material extent at any time during its
engagement by the Consultant;
(b) which any Group Company shall at the
Termination Date have determined to
carry on with a view to profit in the
immediate or foreseeable future and in
relation to which the Consultant shall
at the Termination Date possess any
Confidential Information;
"Company Invention" any improvement, invention or discovery
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made by the Consultant which applying the
provisions of Section 39, Patents Act 1977
in the determination of ownership is, as
between the parties, the property of the
Company;
"Confidential all and any Corporate Information, Marketing
Information" Information, Technical Information and other
information (whether or not recorded in
documentary form or on computer disk or
tape) to which any Group Company attaches an
equivalent level of confidentiality or in
respect of which it owes an obligation of
confidentiality to any third party:
(a) which the Consultant shall acquire at
any time during its engagement by the
Company but which does not form part of
the Consultant's own stock in trade;
and
(b) which is not readily ascertainable to
persons not connected with any Group
Company either at all or without a
significant expenditure of labour,
skill or money;
"Corporate all and any information (whether or not
Information" recorded in documentary form or on computer
disk or tape) relating to the business
methods, corporate plans, management
systems, finances, new business
opportunities or research and development
projects of the Group;
"the Group" the group of companies comprising every
Group Company;
"Group Companies" the Company, its Subsidiaries, any Holding
Company and any Subsidiary of any such
Holding Company and "Group Company" means
any of them;
"Holding Company" any holding company within the meaning of
Section 736, Companies Act 1985 and any
parent undertaking within the meaning of
Section 258, Companies Act 1985 from time to
time;
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"Marketing all and any information (whether or not
Information" recorded in the documentary form or on a
computer disk or tape) relating to the
marketing or sales of any past, present or
future product or service of the Group;
"Material Interest" (a) the holding of any position as
director, officer, employee,
consultant, adviser, partner, principal
or agent;
(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 3 per
cent of the issued ordinary shares of
any company whose shares are listed on
any Recognised Investment Exchange; or
(c) the direct or indirect provision of any
financial assistance;
"Recognised shall bear the meaning attributed to it
Investment under Section 207, Financial Services Act
Exchange" 1986 and Nasdaq or any similar or comparable
exchange;
"Services" the consultancy services of the Consultant
to be provided under this Agreement;
"Subsidiaries" any subsidiaries within the meaning of
Section 736, Companies Act 1985 and any
subsidiary undertakings within the meaning
of Section 258, Companies Act 1985 from time
to time, and "Subsidiary" means any of them;
"Technical all and any trade secrets, secret formulae,
Information" processes, inventions, designs, know-how
discoveries, technical specifications and
other technical information (whether or not
recorded in documentary form or on computer
disk or tape) relating to the creation,
production or supply of any past, present or
future product or service
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of the Group; and
"Termination Date" the date on which the Consultant shall cease
to be engaged by the Company in any of the
Businesses.
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 repealed statute or statutory provision which it
re-enacts (with or without modification); and
(iii) any statute or statutory provision which modifies,
consolidates, re-enacts or supersedes it;
(c) a reference to clauses and schedules are to clauses and
schedules of 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; and
(d) the table of contents and headings are for convenience only and
shall not affect the interpretation of this Agreement.
2. APPOINTMENT
The Company agrees to engage the Consultant and the Consultant agrees to
provide the Services to the Company for the purposes of the Businesses
on the terms and subject to the conditions set out below.
3. TERM OF APPOINTMENT
The Consultant shall be engaged by the Company (subject as provided) in
this Agreement with effect from 1 April 2001 until 31 March 2003.
4. CONSULTANCY SERVICES
The Consultant shall advise and assist the Company in all aspects of its
Businesses and shall carry out such specific tasks as may be assigned to
him by the Chief Executive or by the Board.
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4.1 The Consultant may be required, in pursuance of his obligations under
this Agreement, to provide his Services not only to the Company but also
to other Group Companies.
4.2 The Consultant shall keep the Board fully informed at all times of
progress on projects on which the Consultant is engaged from time to
time.
5. COMMITMENT
5.1 The Consultant shall provide a minimum of 50 days of Services per year
as and when requested by the Company and any such additional days of
Services as the Company shall from time to time request.
5.2 The Consultant shall at all times give priority to the provision of the
Services to the Company over all other services or business activities
undertaken by the Consultant.
5.3 If the Consultant shall be prevented by illness or injury from
performing the Services, the Consultant shall report this fact as soon
as possible and, if practicable, by 10.00 am on the first day of
incapacity to the Company and, in the case of an absence of uncertain
duration, shall keep the Company informed of the reason for its
continued absence and of its expected duration. If the absence through
illness or injury continues for more than 7 consecutive calendar days
the Consultant shall provide the Company with a doctor's certificate for
each week of its continued absence.
6. FEE
6.1 The Company shall pay to the Consultant in consideration of the
provision of the Services a fee of (pound)1,000 per day (exclusive of
Value Added Tax) together with all hotel, travelling, entertainment and
other out of pocket expenses (other than those incurred in respect of
all payments made by the Consultant for its overhead expenses)
reasonably and properly incurred by the Consultant in the provision of
the Services subject to the production to the Company of such vouchers
or other evidence of actual payment of the expenses as the Company may
reasonably require, and to be payable in arrears in accordance with
sub-clause 6.3.
6.2 Any credit card or charge card supplied to the Consultant by the Company
shall be used solely for expenses incurred by it in carrying out its
duties under this Agreement.
6.3 The Consultant shall render monthly invoices to the Company in respect
of the fees and expenses payable in accordance with sub-clause 6.1 and,
where the Consultant is registered for VAT, any VAT payable shall be
shown separately on such invoices. The amounts so invoiced shall be
payable by the Company within 14 days of the date of invoice
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and the Company shall not account to the Consultant for any fees or
expenses save on receipt of such invoices. All fees shall be payable to
the Consultant without deductions of any kind.
6.4 Without prejudice to the generality of the provisions of this clause any
payment made by the Company to the Consultant under this Agreement shall
be without prejudice to any claims which the Company may have against
the Consultant and shall not constitute any admission by the Company as
to the performance by the Consultant of its obligations under this
Agreement.
7. TERMINATION OF APPOINTMENT
Notwithstanding any other provision of this Agreement, should the
Consultant:
(a) fail or neglect efficiently and diligently to comply with the
terms of this Agreement or be guilty of any material or
persistent breach or non-observance of any of the provisions of
this Agreement; or
(b) be guilty of any other conduct calculated or likely to affect
prejudicially the interests of the Company or its subsidiaries
then the Company may by written notice to the Consultant forthwith
terminate this Agreement, provided that any such termination shall be
without prejudice to any other rights or remedies of the Company.
8. CHANGE OF CONTROL
8.1 A person has "Control" of a company if he holds, directly or indirectly,
shares which, together with shares held by any persons acting in concert
with him, carry 50% or more of the voting rights of that company and
"Change in Control" shall be construed accordingly. In the event of a
hostile take-over offer being made to acquire all the shares with voting
rights in the Company within 12 months of the date of this Agreement,
then a Change of Control shall be deemed to have taken place on the
announcement by or on behalf of the hostile offeror (who must also be a
hostile offeror on the date of such announcement) that such offer is or
has become unconditional in all respects. This clause 8 will not apply
in the event of a Change of Control which is recommended to shareholders
by a majority of the Board.
8.2 If, at any time during the period of 6 months following a hostile offer
becoming unconditional in all respect ("The Operative Period"), the
Consultant is either dismissed by the Company or the Consultant severs
notice in writing on the Company of his election to treat the Change of
Control as a breach of this Agreement before the expiry of the Operative
Period ("Special Notice"), then the Company shall pay
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to the Consultant on the date on which either the Consultant is served
with notice of dismissal by the Company or the Consultant serves a
Special Notice, by way of liquidated damages a sum equal to 2 years'
fees ("the Severance Payment"). The Severance Payment shall be the only
payment which the Company shall make to the Consultant as compensation
for the termination of his consultancy. If a Special Notice is not
served by the Consultant within the Operative Period, the Consultant
shall be deemed to have waived any breach of this Agreement pursuant to
this clause 8 and shall have no right or entitlement to the Severance
Payment.
8.3 The payments to be made to the Consultant pursuant to this clause 8
shall be subject to such deductions as the Company is obliged to make by
law. In the event of the Consultant becoming entitled to receive the
Severance Payment as provided for in this clause 8 the Consultant hereby
agrees that he shall not be entitled to any further or additional
compensation for the termination of his consultancy and, in the event of
payment being made to the Consultant under this clause 8, waives,
releases and discharges any and all such rights and claims which the
Consultant may have against any Group Company under this Agreement or
arising as a consequence of its termination.
8.4 In the event of payment being made to the Consultant under this clause
8, the Consultant shall at the request of the Company enter into a
written compromise agreement with the Company which meets the
requirements of section 203 of the Employment Rights Act 1996 (as
modified or re-enacted) and which compromises in full and final
settlement on the basis of the Severance Payment made under this clause
8 all or any statutory or contractual claims which the Consultant has or
may have against the Company or any Group Company arising from this
Agreement save for any claims in respect of the Consultant's position as
Chairman, accrued pension rights and any claim for personal injury.
8.5 A Special Notice shall be of no effect if served at a time when the
Consultant has committed or is under investigation for acts or omissions
which would entitle the Company to terminate this Agreement instantly
pursuant to clause 7.
9. ACKNOWLEDGEMENT BY THE CONSULTANT
The Consultant acknowledges that:
(a) each Group Company possesses a valuable body of Confidential
Information;
(b) the Company will give him access to Confidential Information in
order that he may carry out the duties of its appointment;
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(c) the duties of its appointment include, without limitation, a
duty of trust and confidence and a duty to act at all times in
the best interests of the Group; and
(d) the disclosure of any Confidential Information to any customer
or actual or potential competitor of any Group Company would
place such company at a serious competitive disadvantage and
would cause immeasurable (financial and other) damage to the
Businesses.
10. OBLIGATIONS
10.1 Inventions
(a) If at any time during his engagement the Consultant (whether
alone or with any other person or persons) makes any invention
which relates either directly or indirectly to the Businesses of
any Group Company, the Consultant shall promptly disclose to the
Company full details, including drawings and models, of such
invention to enable the Company to determine whether or not it
is a Company Invention.
(b) If the invention is not a Company Invention, the Company shall
treat all information disclosed to it by the Consultant as
confidential property of the Consultant.
(c) If the invention is a Company Invention, the Consultant 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 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.
(d) Decisions as to the patenting and exploitation of any Company
Invention shall be at the sole discretion of the Company.
(e) The Consultant irrevocably appoints the Company to be his
attorney in his name and on his behalf to execute documents, to
use the Consultant's 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 provision of paragraph(c)
and a certificate in writing signed by any Director or the
Secretary of the Company that any instrument or act falls within
the authority conferred by this Agreement shall be conclusive
evidence that such is the case so far as any third party is
concerned.
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10.2 Copyright etc
(a) The Consultant shall promptly disclose to the Company all
copyright works or designs originated, conceived, written or
made by him alone or with others (except only those works
originated, conceived, written or made by him wholly outside his
normal working hours which are wholly unconnected with his
engagement) 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 shall be fully and
absolutely vested in the Company.
(b) The Consultant 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 right and
other proprietary rights (if any) for their full terms
throughout the world in respect of all copyright works and
designs originated, conceived, written or made by the Consultant
(except only those works or designs originated, conceived,
written or made by the Consultant wholly unconnected with his
engagement) during the period of his engagement by the Company.
(c) The Consultant irrevocably and unconditionally waives in favour
of the Company any and all moral rights conferred on him by
Chapter IV, Part I, Copyright Designs and Patents Act 1988 for
any work in which copyright or design right is vested in the
Company whether by paragraph (b) or otherwise.
(d) The Consultant shall, at the request and expense of the Company,
do all things necessary or desirable to substantiate the rights
of the Company under paragraphs 9.2(b) and 9.2(c).
10.3 Conflict of interest
(a) The Consultant agrees that during the currency of this
Agreement, he shall:
(i) abide by any relevant Company policy which may be
promulgated from time to time;
(ii) not without the Company's prior written permissions hold
any Material Interest in any person firm or company
which:
(A) is or shall be in competition with any of the
Businesses;
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(B) impairs or might reasonably be thought by the
Company to impair his 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 him to disclose any
Confidential Information in order properly to
discharge his duties to or to further his
interest in such person, firm or company;
(iii) not directly or indirectly receive or obtain in respect
of any goods or services sold or purchased or other
business transacted (whether or not by him) by or on
behalf of any Group 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 he or any firm or
company in which he holds any Material Interest shall
obtain any such discount, rebate, commission or
inducement, he or it shall immediately account to the
Company for the amount so received;
(iv) not without the prior authority of the Company remove
from the Company premises or copy or allow others to
copy the contents of any document, computer disk, tape
or other tangible item which contains any Confidential
Information or which belongs to any Group Company;
(v) return to the Company upon request and, in any event, at
the Termination Date all documents, computer disks and
tapes and other tangible items in his possession or
under his control which belong to any Group Company or
which contain or refer to any Confidential Information;
and
(vi) if so requested by the Company delete all Confidential
Information from any computer or word processor disks,
tapes or other re-usable material in its possession or
under its control and destroy all other documents and
tangible items in his possession or under his control
which contain or refer to any Confidential Information.
(b) The Consultant agrees that he shall not during the currency of
this Agreement nor at any time thereafter directly or indirectly
disclose or permit to be disclosed on his behalf to any person,
firm or company or use other than for any legitimate purposes of
any Group Company any Confidential Information or copies,
summaries or reproductions in any form provided that this
restriction shall cease to apply to Confidential Information
which may come into the public domain otherwise than through
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unauthorised disclosure by the Consultant or through the default
of the Consultant.
11. NATURE OF CONSULTANCY
11.1 Nothing in this Agreement shall render the Consultant an employee, agent
or partner of the Company and the Consultant shall not hold himself out
as such. The Company shall not be liable for any of the acts or
omissions of the Consultant and the Consultant shall not be liable for
any of the acts or omissions of the Company. The Consultant shall not
pledge the credit of the Company nor sign any document, enter into any
agreement or make any undertaking on behalf of the Company.
11.2 The Consultant shall account for any income tax, value added tax and
social security contributions to the appropriate authorities.
11.3 Subject to the restrictions and other obligations of the Consultant
contained in this Agreement, nothing in this Agreement shall prevent the
Consultant from engaging in other consultancy activities or in part-time
employment.
12. OFFICE FACILITIES
If requested by the Consultant, the Company shall make available to the
Consultant an office and such secretarial and other office services as
may be necessary for the Consultant to deliver the consultancy services
under this Agreement.
13. GENERAL
13.1 Entire agreement and conflicts
This Agreement sets out the entire agreement and understanding between
the parties in respect of the subject matter of this Agreement.
13.2 Assignment
This Agreement shall be binding upon and enure for the benefit of the
successors in title of the Company but it shall not be assignable by any
party without the prior written consent of the other.
13.3 Variation
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.
13.4 Invalidity
To the extent that any provision of this Agreement is found by any court
or competent authority to be invalid, unlawful or unenforceable
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in any jurisdiction, that provision shall be deemed not to be a part of
this Agreement, it shall not affect the enforceability of the remainder
of this Agreement nor shall it affect the validity, lawfulness or
enforceability of that provision in any other jurisdiction.
13.5 Accrued Rights
The expiration or termination of this Agreement however arising shall
not operate to affect such of the provisions of this Agreement as are
expressed to operate or have effect after then and shall be without
prejudice to any accrued rights or remedies of the parties.
13.6 Indemnity
(a) The Consultant will indemnify the Company from and against all
actions, claims, costs, proceedings, expenses, loss or damage
(including, without limitation, legal costs):
(i) in respect of any liability which may arise under the
PAYE System (including under sections 203-207 ICTA 1988,
or on regulations made under those sections) and any
liability for Class 1, or Class 1A National Insurance
Contributions; or
(ii) which may arise directly or indirectly from the
unauthorised disclosure or use of the Confidential
Information by the Consultant or from any other breach
of the terms of this Agreement.
13.7 Releases and waivers
(a) The rights, powers and remedies conferred on any party by this
Agreement and remedies available to any party are cumulative and
are additional to any right, power or remedy which it may have
under general law or otherwise.
(b) Any party may, in whole or in part, release, compound,
compromise, waive or postpone, in its absolute discretion, any
liability owed to it or right granted to it in this Agreement by
any other party or parties without in any way prejudicing or
affecting its rights in respect of that or any other liability
or right not so released, compounded, compromised, waived or
postponed.
(c) No single or partial exercise, or failure or delay in exercising
any right, power or remedy by any party shall constitute a
waiver by that party of, or impair or preclude any further
exercise of, that or any right, power or remedy arising under
this Agreement or otherwise.
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14. NOTICES
14.1 Any notice to a party under this Agreement shall be in writing signed by
or on behalf of the party giving it and shall, unless delivered to a
party personally, be left at, or sent by prepaid first class post,
prepaid recorded delivery or facsimile to the address of the party as
set out on page 1 of this Agreement or as otherwise notified in writing
from time to time.
14.2 A notice shall be deemed to have been served:
(a) at the time of delivery if delivered personally;
(b) 48 hours after posting in the case of an address in the United
Kingdom and 96 hours after posting for any other address;
(c) 2 hours after transmission if served by facsimile on a business
day prior to 3 pm or in any other case at 10 am on the business
day after the date of despatch.
If the deemed time of service is not during normal business hours in the
country of receipt, the notice shall be deemed served at or, in the case
of faxes, 2 hours after the opening of business on the next business day
of that country.
15. GOVERNING LAW AND JURISDICTION
15.1 This Agreement shall be governed by and construed in accordance with
English law.
15.2 Each of the parties irrevocably submits for all purposes in connection
with this Agreement to the exclusive jurisdiction of the courts of
England.
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This Agreement has been signed on the date appearing at the head of page 1
Executed as a Deed by Benjamin Blackden) Benjamin Blackden
)
)
in the presence of: ) Adele Thorpe
Signature of witness:
Name: Adele Thorpe
Address: Wilton Cottage, Puers Lane, Jordans,
Bucks, HP9 2TE
Occupation: Company Secretary
Executed as a Deed )
(but not delivered until the )
date appearing at the head )
of page 1) by Professional Staff )
Group plc )
acting by: ) Andrew Dixey
Director
) Adele Thorpe
Director/Secretary