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Exhibit 10(t)
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Service Agreement dated September 9, 1998, between Levington
Horticulture Limited (nka The Scotts Company (UK) Ltd.)and Nicholas Kirkbride
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SERVICE AGREEMENT
DATE 9 September 1998
PARTIES
1. LEVINGTON HORTICULTURE LIMITED whose registered office is at
Salisbury House, Weyside Park, Catteshall Lane, Godalming,
Surrey SU7 IXE ("the Company"); and
2. NICHOLAS KIRKBRIDE of Kelbrook House, 44 Whielden Street,
Amersham,
Bucks HP7 OHU ("the Executive")
1 COMMENCEMENT AND TERM
1.1 The Executive's employment pursuant to this Agreement shall
begin on 2 November 1998 or such later date as may reasonably
be agreed between the parties (the "Commencement Date"). The
Executive's period of continuous employment for statutory
purposes shall be the Commencement Date.
1.2 The employment of the Executive shall continue following the
Commencement Date (subject to the provisions of Clause 14)
unless and until terminated by either party giving to the
other not less than twelve months' notice in writing such
notice to be given at any time.
1.3 The Company may at its absolute discretion elect to terminate
the employment of the Executive with immediate effect by
paying to the Executive 12 months' salary (including benefits)
in lieu of notice. The Executive is required to mitigate his
loss where he is dismissed and any payment in lieu of notice
may be reduced to take account of mitigation and to take
account of the payment or of any part of the payment being
made earlier than the date of payment of the salary or
benefits to which he would otherwise be entitled under this
Agreement.
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2 OBLIGATIONS DURING EMPLOYMENT
2.1 The Executive shall during the continuance of his employment:-
2.1.1 serve the Company to the best of his ability in the capacity
of Managing Director of the UK consumer business or in such
other capacity (of similar status and responsibility) as the
Board may from time to time determine:
2.1.2 work towards the integration of the Company's UK consumer
business namely the Levington and Miracle subsidiaries of
Scotts' UK business;
2.1.3 to act as Managing Director. of the Company and the Group's UK
consumer business once integration has been completed;
2.1.4 faithfully and diligently perform such duties and exercise
such powers consistent with them as the Board (or anyone
authorized by the Board) may from time to time properly assign
to or confer upon him;
2.1.5 if and so long as the Board so directs perform and exercise
the said duties and powers on behalf of any Associated Company
and act as a director or other officer of any Associated
Company;
2.1.6 do all in his power to protect promote develop and extend the
business interests and reputation of the Group;
2.1.7 at all times and in all respects conform to and comply with
the lawful and reasonable directions of the Board;
2.1.8 promptly give to the Board (in writing if so requested) all
such information explanations and assistance as it may require
in connection with the business and affairs of the Company and
any Associated Company for which he is required to perform
duties; 2.1.9 unless prevented by sickness injury or other
incapacity or as otherwise agreed by the Board devote the
whole of his time attention and abilities during his hours of
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work (which shall be normal business hours and such additional
hours as may be necessary for the proper performance of his
duties) to the business and affairs of the Company and any
Associated Company for which he is required to perform duties;
and
2.1.10 work at the Company's offices at Salisbury House, Weyside
Park, Catteshall Lane, Godalming, Surrey or at such other
place of business of the Company or any Associated Company
within the United Kingdom which the Board may reasonably
require for the proper performance and exercise of his duties
and powers and the Executive may be required to travel on the
business of the Company and any Associated Company for which
he is required to perform duties.
3 FURTHER OBLIGATIONS OF THE EXECUTIVE
3.1 During the continuance of his employment the Executive shall
not without the prior written consent of the Board (such
Consent not to be unreasonably withheld or delayed) directly
or indirectly carry on or be engaged concerned or interested
in any other business trade or be interested as a holder or
beneficial owner solely for investment purposes of more than 5
per cent in aggregate of any class of shares debentures or
other securities in issue from time to time of any company
which are for the time being quoted or dealt in on any
recognised investment exchange (as defined by Section 207(1)
of the Financial Services Act 1986).
3.2 The Executive may, during the continuance of his employment
and with the prior written consent of the Company, hold
non-executive directorships in companies provided:
3.2.1 such companies do not directly or indirectly carry on any
business which competes or may compete with any business of a
kind carried on by the Company or any Associated Company
including in particular (but without limitation) the business
of the production, development and sale of garden and
professional horticultural products: and
3.2.2 such appointments do not or may not in the opinion of the
Board prejudice the performance by the Executive of his duties
pursuant to this Agreement. Any loss
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of Company time incurred as a result of the non-executive
directorships referred to above will be made up in full by the
Executive.
3.3 During the continuance of his employment the Executive:
3.3.1 shall not directly or indirectly procure accept or obtain for
his own benefit (or for the benefit of any other person) any
payment material rebate discount commission vouchers gift
entertainment or other benefit ("Gratuities") from any third
party in respect of any business transacted or proposed to be
transacted (whether or not by him) by or on behalf of the
Company or any Associated Company; and
3.3.2 shall observe the terms of any policy issued by the Company in
relation to Gratuities; and
3.3.3 shall immediately disclose and account to the Company for any
Gratuities received by him (or by any other person on his
behalf or at his instruction).
4 REMUNERATION
4.1 The Company shall pay to the Executive during the continuance
of his employment a salary (which shall accrue from day to
day) at the rate of (pound)138,000 per year inclusive of any
directors' fees payable to the Executive under the Articles of
Association of the Company or any Associated Company (and any
such fees as the Executive shall receive he shall pay to the
Company). The salary shall be payable by equal monthly
installments in arrears on or about the 30th day of each
calendar month. The salary shall be reviewed in each year of
the Executive's employment based on the Executive's
performance and the performance of the Company during the
relevant period. Salary reviews shall be conducted annually in
accordance with the Company's pay review policy from time to
time in force and any increase shall have effect from the
anniversary of the Commencement Date.
4.2 The Executive shall be granted options to acquire 25,000
common shares in the capital of The Scotts Company ("Shares')
on and subject to the Rules of The Scotts Company 1996 Stock
Option Plan (as amended from time to time) (the "Plan"). Such
options shall be granted to the Executive at the first meeting
of the
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Committee (as defined in the Plan) to be held following the
Commencement Date. The Executive shall, in addition, be given
the opportunity to participate in the Plan and to earn
additional stock options at the Company's discretion following
the Commencement Date.
4.3 Upon termination of his employment, the Executive shall have
no claim against the Company for loss arising out of
ineligibility to exercise any Share options granted to him
which have not vested at the date of termination or otherwise
in relation to the Plan and the rights of the Executive shall
be determined solely by the rules of such Plan in force at the
date of termination of his employment.
5 BONUS
The Executive shall be entitled to participate in such bonus
arrangements as the Board may specify from time to time. The
Company may, in its absolute discretion, award the Executive
an annual bonus of up to 30% of his salary as defined in
Clause 4.1 above, dependent upon the attainment by the
Executive of operational and financial targets, such targets
to be agreed between the Company and the Executive each year.
6 PENSION SCHEME
The Company shall during the Executive's employment under this
Agreement:
6.1 pay monthly contributions in respect of the Executive to a
personal pension scheme nominated by him at the rate of 13.5%
of his basic monthly salary under Clause 4.1 (subject to
applicable Inland Revenue limits); or
6.2 allow the Executive to become a member of the appropriate
Company pension scheme ("the Pension Scheme") subject to the
terms of its trust deed and rules in force from time to time,
provided that the Executive shall commence making
contributions to the Pension Scheme within 6 months of the
Commencement Date.
6.3 A contracting-out certificate will be in force at the
commencement of the employment of the Executive.
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7 INSURANCES
7.1 Subject to his complying with and satisfying any applicable
requirements of the relevant insurers the Company shall during
the continuance of his employment:
7.1.1 provide at the Company's expense for the Executive and his
spouse and children under the age of 21 years membership of
PPP or of such other private medical expenses insurance scheme
providing equivalent benefits as the Company may in its
absolute discretion from time to time decide;
7.1.2 provide at the Company's expense the Executive with accident
insurance cover which in the event of the Executive's
sustaining injuries in the course of his employment which
result in his permanent disablement or death shall pay to the
Executive or his chosen dependants (as the case may be) a lump
sum equal to 3 times the Executive's then annual rate of
salary;
7.1.3 provide the Executive with membership of the Company's
permanent health insurance scheme.
7.2 The Company shall at its absolute discretion be entitled to
cease to provide any or all of the insurances referred to in
subclauses 7.1.1 to 7.1.3 if the medical condition of the
Executive is or becomes such that the Company is unable to
secure any such insurance under the rules of any applicable
scheme or otherwise except at a rate or premium in excess of
250 per cent of the initial premium agreed for such Executive.
8 COMPANY CAR
8.1 Subject to Clause 8.2, the Company shall pay to the Executive
a car allowance of(pound)750 per month less tax and national
insurance.
8.1.1 The Company shall reimburse the Executive for private and
business fuel costs.
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8.1.2 The Executive shall be responsible for all other running costs
including the costs of servicing, taxing and insurance.
8.1.3 For all purposes connected with the calculation of any
severance or termination payment, the benefit of the car
allowance provided pursuant to Clause 8.1 shall not be taken
into account and it shall not form part of the Executive's
pensionable salary.
8.2 If the Executive completes more than 15,000 business miles in
any one year he shall have the option of being provided with a
company car of a lease value not in excess of (pound)750 per
month in replacement of the car allowance in Clause 8.1 above.
If the Executive wishes to exercise this option, he shall
notify the Company in writing not less than one month prior to
the date when he wishes the car to be provided.
8.3 The Executive shall at all times and in all respects conform
to and comply with any policy which may from time to time be
made by the Company in relation to cars provided by it for the
use of its employees.
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9. EXPENSES
9.1 The Company shall, subject to Clause 19.2. during the
continuance of his employment reimburse the Executive in
respect of:
9.1.1 all reasonable travelling accommodation entertainment and
other similar out-of-pocket expenses wholly exclusively and
necessarily incurred by him in or about the performance of his
duties;
9.1.2 the rental and unit charges attributable to the telephone at
his home to reflect business use; and
9.1.3 all reasonable household and removal expenses incurred by him
as a result of a move from his then current address
necessitated by the Company's requiring him to work
permanently at another location.
9.2 Except where specified to the contrary all expenses shall be
reimbursed on a monthly basis subject to the Executive
providing appropriate evidence (including receipts, invoices,
tickets and/or vouchers as may be appropriate) of the
expenditure in respect of which he claims reimbursement.
10 HOLIDAYS
10.1 The Executive shall (in addition to the usual public and bank
holidays) be entitled during the continuance of his employment
to 26 working days' paid holiday in each holiday year of the
Company. The Company's holiday year runs from 1 January to 31
December.
10.2 The Company may require the Executive to work on any public or
bank holiday but in such event the Executive shall be entitled
to take paid time off in lieu.
10.3 The Company reserves the right to nominate up to 5 days on
which holiday must be taken by the Executive.
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10.4 The Executive shall be entitled to carry forward up to 5 days
of his annual holiday entitlement from one holiday year to the
next. This entitlement will not, however, extend beyond a
period of any two consecutive years.
10.5 Upon the termination of his employment the Executive's
entitlement to accrued holiday pay shall be calculated on a
pro rata basis in respect of each completed month of service
in the holiday year in which his employment terminates and the
appropriate amount shall be paid to the Executive provided
that if the Executive shall have taken more days' holiday than
his accrued entitlement the Company is hereby authorised to
make an appropriate deduction from the Executive's final
salary payment.
11 INCAPACITY
11.1 Subject to his complying with the Company's procedures
relating to the notification and certification of periods of
absence from work the Executive shall continue to be paid his
salary (inclusive of any statutory sick pay or social security
benefits to which he may be entitled) during any periods of
absence from work due to sickness injury or other incapacity
in accordance with the Company's regulations.
11.2 If any incapacity of the Executive shall be caused by any
alleged action or wrong of a third party and the Executive
shall decide to claim damages in respect thereof, then the
Executive shall use all reasonable endeavours to recover
damages for loss of earnings over the period for which salary
has been or will be paid to him by the Company under Clause
11.1, and shall account to the Company for any such damages
recovered (in an amount not exceeding the actual salary paid
or payable to him by the Company under Clause 11.1 in respect
of the said period) less any costs borne by him in achieving
such recovery. The Executive shall keep the Company informed
of the commencement, progress and outcome of any such claim.
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12 INTELLECTUAL PROPERTY
12.1 Subject to the relevant provisions of the Patents Act 1977 the
Registered Designs Act 1949 and the Copyright Designs and
Patents Act 1988 if at any time in the course of his
employment the Executive makes or discovers or participates in
the making or discovery of any Intellectual Property relating
to or capable of being used in the business of the Company or
any Associated Company he shall immediately disclose full
details of such Intellectual Property to the Company and at
the request and expense of the Company he shall do all things
which may be necessary or desirable for obtaining appropriate
forms of protection for the Intellectual Property in such
parts of the world as may be specified by the Company and for
vesting all rights in the same in the Company or its nominee.
12.2 The Executive hereby irrevocably appoints the Company to be
his attorney in his name and on his behalf to sign execute or
do any instrument or thing and generally to use his name for
the purpose of giving to the Company or its nominee the full
benefit of the provisions of this Clause and in favour of any
third party 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 Clause shall be
conclusive evidence that such is the case.
12.3 The Executive hereby waives all of his moral rights (as
defined in the Copyright Designs and Patents Act 1988) in
respect of any acts of the Company or any acts of third
parties done with the Company's authority in relation to any
Intellectual Property which is the property of the Company by
virtue of Clause 12.1.
12.4 All rights and obligations under this Clause in respect of
Intellectual Property made or discovered by the Executive
during his employment shall continue in full force and effect
after the termination of his employment and shall be binding
upon the Executive's personal representatives.
13 CONFIDENTIALITY
13.1 The Executive shall not (other than in the proper performance
of his duties or with the prior written consent of the Board
or unless ordered by a court of competent
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jurisdiction) at any time either during the continuance of his
employment or after its termination disclose or communicate to
any person or use for his own benefit or the benefit of any
person other than the Company, any Associated Company or his
solicitor any confidential information which may come to his
knowledge in the course of his employment and the Executive
shall during the continuance of his employment use his best
endeavours to prevent the unauthorised publication or misuse
of any confidential information provided that such
restrictions shall cease to apply to any confidential
information which may enter the public domain other than
through the default of the Executive.
13.2 All notes and memoranda of any trade secret or confidential
information concerning the business of the Company and any
Associated Companies or any of its or their suppliers, agents,
distributors, customers or others which shall have been
acquired received or made by the Executive during the course
of his employment shall be the property of the Company and
shall be surrendered by the Executive to someone duly
authorised in that behalf at the termination of his employment
or at the request of the Board at any time during the course
of his employment.
13.3 For the avoidance of doubt and without prejudice to the
generality of Clauses 13.1 and 13.2 the following is a
non-exhaustive list of matters which in relation to the
Company and the Associated Companies are considered
confidential and must be treated as such by the Executive:-
13.3.1 any trade secrets of the Company or any Associated Company;
13.3.2 any information in respect of which the Company or any
Associated Company is bound by an obligation of confidence to
any third party, provided that the Executive is aware of the
obligation of confidence;
13.3.3 marketing strategies and plans;
13.3.4 customer lists and details of contacts with or requirements of
customers;
13.3.5 pricing strategies;
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13.3.6 discount rates and sales figures;
13.3.7 lists of suppliers and rates of charge;
13.3.8 information which has been supplied in confidence by clients,
customers or suppliers:
13.3.9 any invention technical data know-how or other manufacturing
or trade secrets of the Group and their clients/customers; and
13.3.10 any other information made available to the Executive which is
identified to the Executive as being of a confidential nature.
13.4 The Executive shall not without the prior written consent of
the Board either directly or indirectly publish any opinion
fact or material or deliver any lecture or address or
participate in the making of any film radio broadcast or
television transmission or communicate with any representative
of the media or any third party relating to the business or
affairs of the Group or to any of its or their officers
employees customers/clients suppliers distributors agents or
shareholders or to the development or exploitation of
Intellectual Property. For the purpose of this Clause 'media'
shall include television (terrestrial satellite and cable)
radio newspapers and other journalistic publications. This
Clause shall not preclude impromptu press comment in relation
to trade matters when appropriate.
14 TERMINATION OF EMPLOYMENT
14.1 The employment of the Executive may be terminated by the
Company forthwith without notice or (except in the case of
14.1.7) by payment in lieu of notice if the Executive:
14.1.1 is proven to have committed any serious or persistent breach
or non-observance of any of the material terms, conditions or
stipulations contained in this Agreement; or
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14.1.2 is proven guilty of any serious negligence or gross misconduct
in connection with or affecting the business or affairs of the
Company or any Associated Company for which he is required to
perform duties; or
14.1.3 is proven guilty of conduct which brings or is likely to bring
himself or the Company or any Associated Company into
disrepute; or
14.1.4 is convicted of an arrestable criminal offence (other than an
offence under road traffic legislation in the United Kingdom
or elsewhere for which a non-custodial penalty is imposed); or
14.1.5 is adjudged bankrupt or makes any arrangement or composition
with his creditors or has an interim order made against him
pursuant to Section 252 of the Insolvency Act 1986, or
14.1.6 is or becomes prohibited by law from being a director; or
14.1.7 is on the basis of an independent medical report supplied to
the Company following his having undergone a medical
examination unfit to perform his duties.
14.2 If the Executive shall have been absent from work due to
sickness injury or other incapacity for periods in excess of
six months in aggregate in any period of twelve consecutive
months the Company, notwithstanding the provisions of Clause
7.1.3, may terminate his employment by giving to him not less
than three months' notice in writing expiring at any time
provided that the Company shall withdraw such notice if during
its currency the Executive returns to full-time work and
provides the Company with a medical certificate stating that
he has fully recovered and that no recurrence of such
incapacity may reasonably be anticipated.
14.3 If either party gives notice to terminate this Agreement, the
Executive agrees that for the period of notice in Clause 1.3
above the Board may in its absolute discretion require the
Executive to perform only such duties as it may allocate to
him or not to perform any of his duties and may require him
not to have any contact with customers of the Company or any
Associated Company nor any
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contact (other than purely social contact) with such employees
of the Company and any Associated Company as the Board shall
determine and/or may exclude him from any premises of the
Company or of any Associated Company (without providing any
reason for doing so); and that such action on the part of the
Company shall not constitute a breach of this Agreement nor
shall the Executive have any claim against the Company in
respect of any such action Provided always that throughout
such period the Executive's salary and contractual benefits
shall not cease to be paid or provided (unless and until his
employment is terminated).
14.4 Upon the termination of his employment (for whatever reason
and howsoever arising) the Executive:
14.4.1 shall not take away conceal or destroy but shall immediately
deliver up to the Company all documents (which expression
shall include but without limitation notes memoranda
correspondence drawings sketches plans designs and any other
material upon which data or information is recorded or stored)
relating to the business or affairs of the Company or any
Associated Company or any of their clients/customers
shareholders employees officers suppliers distributors and
agents (and the Executive shall not be entitled to retain any
copies or reproductions of any such documents) together with
any other property belonging to the Company or any Associated
Company which may then be in his possession or under his
control:
14.4.2 shall at the request of the Board immediately resign without
claim for compensation from office as a director of the
Company and any Associated Company and from any other office
held by him in the Company or any Associated Company (but
without prejudice to any claim he may have for damages for
breach of this Agreement) and in the event of his failure to
do so the Company is hereby irrevocably authorised to appoint
some person in his name and on his behalf to sign and deliver
such resignations to the Board; and
14.4.3 shall not at any time thereafter make any untrue or misleading
oral or written statement concerning the business and affairs
of the Company or any Associated Company nor represent himself
or permit himself to be held out as being in any way connected
with or interested in the business of the Company or any
Associated Company (except as a former employee for the
purpose of
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communicating with prospective employers or complying with any
applicable statutory requirements); and
14.4.4 shall not at any time thereafter use the name "Levington",
"Murphy", "Scotts" or "Miracle-Gro" or any other product name,
brand, trade or business name used by the Group at the date of
termination of this Agreement or during the period of two
years preceding the date of termination of this Agreement or
any name capable of confusion therewith (whether by using such
names as part of a corporate name or otherwise), and
14.4.5 shall immediately repay all outstanding debts or loans due to
the Company or any Associated Company and the Company is
hereby authorised to deduct from any wages (as defined by
Section 27 of the Employment Rights Act 1996) of the Executive
a sum in repayment of all or any part of any such debts or
loans.
14.5 If the employment of the Executive is terminated by reason of
the liquidation of the Company for the purpose of
reconstruction or amalgamation or as part of any arrangement
for the amalgamation or reconstruction of the Company not
involving insolvency and the Executive is offered employment
with any concern or undertaking resulting from the
reconstruction or amalgamation on terms and conditions which
taken as a whole are not less favourable than the terms of
this Agreement then the Executive shall have no claim against
the Company in respect of such termination.
15 EXECUTIVE'S COVENANTS
15.1 The Executive acknowledges that during the course of his
employment with the Company he will receive and have access to
confidential information of the Group (including without
limitation those matters specified in Clause 13.3 of this
Agreement) and he will also receive and have access to
detailed client/customer lists and information relating to the
operations and business requirements of those
clients/customers and accordingly he is willing to enter into
the covenants described in Clause 15.2 in order to provide the
Group with what he considers to be reasonable protection for
those interests.
15.2 The Executive hereby Covenants with the Company that he will
not without the previous
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written consent of the Board either alone or jointly with or
on behalf of any person:
15.2.1 in the Restricted Territories for the period of twelve months
following the date of termination of this Agreement directly
or indirectly in competition with the Company or any
Associated Company deal with or engage in business with or be
in any way interested in or connected with any concern,
undertaking, firm or body corporate which engages in or
carries on within any part of the Restricted Territories any
business which competes with any business carried on by the
Company or any Associated Company at the date of termination
of this Agreement in which the Executive was involved during
the period of two years prior to the termination of this
Agreement including in particular the business of the
production, development and sale of the Restricted Products
Provided that (for the avoidance of doubt only) if any such
concern undertaking, firm or body corporate has a separately
distinguishable division that does not compete with the
business of the Company or any Associated Company as at the
date of termination of this Agreement the Executive may be
employed or engaged in such division with duties and carrying
out activities which do not compete and do not assist
competition with such business;
15.2.2 in the Restricted Territories for the period of twelve months
following the date of termination of this Agreement directly
or indirectly:
15.2.2.1 interfere with or, in competition with the
Company or any Associated Company, offer or
agree to provide Restricted Products or
solicit with a view to providing Restricted
Products or endeavour to entice away from
the Company or any Associated Company the
custom of any person, firm or body corporate
which. at any time during the period of two
years ending on the date of termination of
this Agreement, has been a customer or
client of, or in the habit of dealing with,
the Company or any Associated Company or
which, at any time during that period, was
to his knowledge negotiating with the
Company or any
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Associated Company in relation to the
provision of Restricted Products and with
whom the Executive has had dealings as part
of his employment by the Company;
15.2.2.2 interfere or seek to interfere with
contractual or other trade relations between
the Company or any Associated Company and
any of its or their respective suppliers in
existence or under negotiation at any time
during the period of two years ending on the
date of termination of this Agreement; or
15.2.2.3 solicit the services of or endeavour to
entice away from the Company or any
Associated Company any director, senior or
highly skilled employee or consultant of the
Company or any Associated Company known
personally to the Executive (whether or not
such person would commit any breach of his
contract of employment or engagement by
reason of leaving the service of such
company) or knowingly employ, assist in or
procure the employment by any other person,
firm or body corporate of any such person.
15.3 The Executive agrees that having regard to the facts and
matters above, the restrictions contained in Clause 15.2 are
reasonable and necessary for the protection of the legitimate
interests of the Company and that, having regard to those
facts and matters, those restrictions do not work harshly on
him. It is nevertheless agreed that, if any of those
restrictions shall, taken together or separately, be held to
be void or ineffective for any reason but would be held to be
valid and effective if part of its wording were deleted, that
restriction shall apply with such deletions as may be
necessary to make it valid and effective.
15.4 The Executive hereby agrees that he will at the cost of the
Company enter into a direct agreement or undertaking with any
Associated Company whereby he will accept restrictions and
provisions corresponding to the restrictions and provisions in
Clause 15.2
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above (or such of them as may be appropriate in the
circumstances) in relation to such activities and such area
and for such periods as such Associated Company may reasonably
require for the protection of its legitimate business
interests.
15.5 The restrictions contained in the sub-Clauses of Clause 15.2
shall be construed as separate and individual restrictions and
shall each be capable of being severed without prejudice to
the other restrictions or to the remaining provisions of this
Agreement.
15.6 The Executive hereby undertakes that during and after the
continuance of this Agreement he will immediately notify the
Company of any offer of employment or any other engagement or
arrangement made to the Executive by any third party or
parties which may give rise to a breach of one or more of the
covenants contained in Clause 15.2 ("a notifiable offer") and
further undertakes that on receipt of any notifiable offer he
will immediately inform the third party or parties responsible
for the notifiable offer of the existence of those covenants.
15.7 If the Company requires the Executive not to perform any of
his duties and/or excludes the Executive from the Company's
premises ("garden leave") as set out in Clause 14.3 above for
some or all of any period of notice, the period of the
post-termination restrictions set out in this Clause 15 shall
be reduced by the length of the garden leave served before the
date this Agreement terminates.
16 DISCIPLINARY AND GRIEVANCE PROCEDURES
16.1 For statutory purposes there is no formal disciplinary
procedure in relation to the Executive's employment. The
Executive shall be expected to maintain the highest standards
of integrity and behaviour.
16.2 If the Executive is not satisfied with any disciplinary
decision taken in relation to him he may apply in writing
within 14 days of that decision to the Chief Executive of the
Scotts Company whose decision shall be final.
16.3 If the Executive has any grievance in relation to his
employment he may raise it in
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writing with the Chief Executive of the Scotts Company whose
decision shall be final.
17 DIRECTORSHIP
17.1 The Executive shall not during his employment voluntarily
resign from his office as a director of the Company (except in
circumstances where to continue to hold office as a director
may as a matter of law result in the Executive incurring
personal liability under the Insolvency Act 1986) and he shall
not do or fail to do anything which causes or is likely to
cause him to be prohibited by law from continuing to act as a
director.
17.2 The removal of the Executive from the office of director of
the Company shall terminate the Executive's employment under
this Agreement and such termination shall, except where the
Company was entitled at the time of such removal to terminate
his employment pursuant to Clause 14.1, be without prejudice
to any claim which the Executive may have for damages for
breach of this Agreement.
18 NOTICES
18.1 Any notice to be given under this Agreement shall be given in
writing and shall be deemed to be sufficiently served by one
party on the other if it is delivered personally or is sent by
registered or recorded delivery pre-paid post (air mail if
overseas) addressed to either the Company's registered office
for the time being or the Executive's last known address as
the case may be.
18.2 Any notice sent by post shall be deemed (in the absence of
evidence of earlier receipt) to be received 2 days after
posting (6 days if sent air mail) and in proving the time such
notice was sent it shall be sufficient to show that the
envelope containing it was properly addressed stamped and
posted.
19 Miscellaneous
19.1 Any benefits provided by the Company to the Executive or his
family which are not expressly referred to in this Agreement
shall be regarded as ex gratia benefits
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provided at the entire discretion of the Company and shall not
form part of the Executive's contract of employment.
19.2 The Company shall be entitled with reasonable notice to the
Executive at any time during the Executive's employment to set
off and/or make deductions from the Executive's salary or from
any other sums properly due and owing to the Executive from
the Company or any Associated Company in respect of any
overpayment of any kind made to the Executive or in respect of
any debt or other sum due from him.
19.3 Any rules and regulations of the Company contained in any
handbook, procedure or policy documents shall be deemed to
form part of this Agreement.
20 DEFINITIONS AND INTERPRETATION
20.1 In this Agreement unless the context otherwise requires words
and phrases defined in Part XXVI of the Companies Act 1985
have the same meanings thereby attributed to them and the
following expressions have the following meanings:-
ASSOCIATED COMPANY: any company which is from time to time a
holding company of the Company, a subsidiary of the Company or
a subsidiary of a holding company of the Company. The words
"holding company" and "subsidiary" have the meanings given to
them by Section 736 Companies Act 1985 (as amended by the
Companies Act 1989);
THE BOARD: the Board of Directors for the time being of Scotts
Holdings Limited including any duly appointed committee
thereof;
GROUP: the Company and the Associated Companies,
INTELLECTUAL PROPERTY: patents, petty patents, registered and
unregistered trademarks, registered designs (in each case for
the full period thereof), applications for any of the
foregoing, inventions, confidential information (which shall
include for these purposes the matters listed in Clause 13.3).
know-how, business names, trade names, brand names, copyright
and rights in the nature of copyright, design rights
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and get-up, such rights as there may in any product
registrations or product licences and similar rights
subsisting in any country;
KNOW HOW: any know-how, industrial information and techniques
including, without limitation, drawings, specifications,
formulations, test and technical reports, operating and
testing manuals, instruction manuals, quality control
procedures, packaging procedures and tables of operating
conditions and procedures used in the Business at the date
hereof,
RESTRICTED PRODUCTS: horticultural fertilizers, horticultural
growing media, horticultural chemicals and grass seed;
RESTRICTED TERRITORIES: the United Kingdom, the Channel
Islands, the Isle of Man and the Republic of Ireland.
20.2 The headings in this Agreement are for convenience only and
shall not affect its construction or interpretation.
20.3 References in this Agreement to Clauses and paragraphs and the
First Schedule are references to Clauses and paragraphs and
the First Schedule (which is hereby specifically incorporated
in this Agreement) to this Agreement.
20.4 Any reference in this Agreement to a person shall where the
context permits include a reference to a body corporate and to
any unincorporated body of persons.
20.5 Any word in this Agreement which denotes the singular shall
where the context permits include the plural and vice versa
and any word in this Agreement which denotes to the masculine
gender shall where the context permits include the feminine
and/or the neuter genders and vice versa.
20.6 Any reference in this Agreement to a statutory provision shall
be deemed to include a reference to any statutory amendment
modification or re-enactment of it.
20.7 This Agreement contains the entire understanding between the
parties and supersedes all (if any) subsisting Agreements
arrangements and understandings.
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20.7 This agreement contains the entire understanding between the
parties and supersedes all (if any) subsisting Agreements
arrangements and understandings (written or oral) relating to
the employment of the Executive which such Agreements,
arrangements, and understandings shall be deemed to have been
terminated by mutual consent. The Executive acknowledges that
he has not entered into this Agreement in reliance on any
warranty representation or undertaking which is not contained
in or specifically incorporated in this Agreement.
20.8 The various Clauses and sub-Clauses of this Agreement are
severable and if any Clause or sub-Clause or identifiable part
thereof is held to be invalid or unenforceable by any court of
competent jurisdiction then such invalidity or
unenforceability shall not affect the validity or
enforceability of the remaining Clauses or sub-Clauses or
identifiable parts thereof in this Agreement.
20.9 This Agreement is governed by and shall be construed in
accordance with English law and the parties to this Agreement
hereby submit to the exclusive jurisdiction of the English
courts.
IN WITNESS whereof this Agreement has been executed 11/8/98 by the parties
hereto and is intended to be and is hereby delivered on the date first above
written.
Signed by )
LEVINGTON HORTICULTURE )
LIMITED )
/s/ L. Robert Stohler
---------------------
Director
/s/ David Higgins
---------------------
Director
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SIGNED by NICHOLAS )
KIRKBRIDE in the presence of: ) /s/ Nicholas Kirkbride
----------------------
Signature /s/ Amanda Hardwick
Name Mrs. A. Hardwick
Address F. Laverdene Avenue, Totley
Sheffield S17 4117
Occupation: Primary Teacher