Exhibit 10.13
THIS AGREEMENT is made on 1 October 2004
BETWEEN:
(1) CLPE HOLDINGS LIMITED, a company registered in England under number
3720212 whose registered office is at 14-15 Queensbrook, Spa Road,
Bolton, Lancashire BL1 4AY ("the Company"); and
(2) DOUGLAS RALPH WILSON of 61B Carlton Hill, London NW8 OEN, UK ("the
Executive").
1. DEFINITIONS
1.1 In this agreement and the schedule to it the following expressions
shall, unless the context otherwise requires or otherwise as expressly
provided, have the following meanings:-
"Associated Company" any company (or subsidiary thereof as
defined herein) in which any company in
the Group is or shall be the holder of
not less than 20% of the equity share
capital (as defined by Section 744
Companies Act 1985) or to which the
Company or any company in the Group
renders or shall render substantial
managerial, administrative or technical
services;
"Basic Salary" the salary payable to the Executive from
time to time pursuant to clause 4.1;
"Board" the Board of Directors of the Company
(or any director or committee of
directors duly authorised by the Board
of Directors of the Company);
"Commencement Date" For purposes of this Agreement, the
Commencement Date shall be deemed to
occur on October , 2004.
"Confidential Information" (a) any trade secrets, customer
lists, trading details or
other information of a
confidential nature relating
to any company in the Group
(including, without
limitation, details of the
activities, businesses,
forward planning programmes or
finances of any such company);
and
(b) any other information
specifically designated by any
company in the Group as
confidential; and
(c) any information in relation to
which any company in the Group
owes a duty of confidentiality
to any third party.
"Directly or Indirectly" (without prejudice to the generality of
the expression) whether as principal or
agent (either alone or jointly or in
partnership with any other person firm
company) or a shareholder or holder of
loan capital in any other company or
being concerned or interested in any
other person firm or company and whether
as a director partner consultant
employee or otherwise;
Distribution Participation Plan such arrangements as the Company and/or
Group may put in place from time to time
to provide payments for senior level
executives which payments are determined
by or otherwise tied to the performance
of the Company and/or Group.
"Group" together the Company, any holding
company of the Company and any
subsidiary and subsidiary undertakings
of the Company and of such holding
company within the meanings of Sections
258, 736 and 736A of the Companies Act
1985 and any associated company;
"Holiday Year" a calendar year commencing 1st January;
"Subsidiary" CLP Envirogas Limited, a company
registered in England under number
3720203 whose registered office is at
14-15 Queensbrook, Spa Road, Bolton,
Lancashire, BL1 4AY;
"Termination Date" the date of the termination of this
agreement: and
"Working Days" Weekdays but excluding Saturdays,
Sundays, bank or other public holidays.
1.2 The headings to the clauses of this agreement are for convenience only
and have no legal effect and references to the singular shall include a
reference to the plural arid vice versa where the context so admits or
requires.
1.3 References in this agreement to statutory provisions shall, where the
context so admits or requires, be construed as including references to
the corresponding provisions of any earlier statute (whether repealed or
not) directly or indirectly amending, consolidated, extended or replaced
by such provisions, or re-enacted in such provisions, or the
corresponding provisions of any subsequent statute directly or
indirectly amending, consolidating, extending or replacing such
provisions, and shall include any orders, regulations, instruments or
other subordinate legislation made under the relevant statute.
1.4 References in this agreement to clauses and the schedule are references
to clauses of and the schedule to this agreement and references to this
agreement include the schedule the provisions of which form part of this
agreement and are incorporated herein.
2. TERM
2.1 The Company shall employ the Executive and the Executive shall serve the
Company as from the Commencement Date, subject to the terms and
conditions of this agreement, until 31 December 2005.
2.2 Without prejudice to clauses 13.1 and 13.2 at its absolute discretion
the Company may terminate this Agreement and the employment of the
Executive with immediate effect at any time by giving him written notice
and in full and final settlement of all claims which he has or may have
against the Company, or any Group Company, or any director, employee or
agent of the Company or any Group Company under or arising out of his
employment with the Company or any such Group Company, the termination
of his employment or otherwise, in such event the Company will:
2.2.1 pay him a termination payment (less PAYE deductions) equal to
the salary that would otherwise have been paid pursuant to
clause 4.1 during the balance of the Term as described in clause
2.1;
2.2.2 pay him the remainder of expenses incurred in connection with
the Executive's activities hereunder pursuant to clause 5
whether incurred before or after the date notice is given; and
For the avoidance of doubt the Executive's employment will terminate on
the date notice is given by the Company.
2.3 The parties agree that, as of the Commencement Date, the Services
Agreement between the parties dated 5 August 2003 (the "2003 Services
Agreement") shall cease and determine.
3. JOB TITLE AND DUTIES
3.1 The Executive shall be employed as Chief Executive Officer of the
Subsidiary, and shall report to the Board or such persons as the Board
may nominate from time to time. The Executive will be responsible for
all day-to-day operations of the Subsidiary and its affiliates including
new and existing project operations, new project development, project
financing and related activities.
3.2 The Executive will perform the role of Finance Director of the
Subsidiary.
3.3 The Executive has been appointed a Director of the Company pursuant to a
Shareholder's Agreement dated 18 March 2003 among the Company and
certain of its Shareholders (as replaced or amended). Neither the
execution of this Service Agreement and the performance by the Executive
of the duties set forth herein; nor the termination of the Executive's
employment by the Company as provided herein is intended to amend or
modify, or have any other affect on, such Shareholder's Agreement.
3.4 The Executive shall, subject always to the control of the Board, carry
out such duties and accept such offices and directorships,
notwithstanding his job title but consistent with his status, as may be
assigned to him from time to time by the Board and such duties and/or
offices and/or directorships may relate to the business of the
Subsidiary or of any company in the Group.
3.5 The Executive shall (in addition to observing his implied duty of
fidelity and his duties as a director at law):-
3.5.1 use all proper means to the best of his ability to maintain and
improve the business of the Subsidiary and the Group and further
their respective reputations and interests:
3.5.2 faithfully and diligently perform those duties and exercise such
powers as are consistent with them which shall from time to time
be assigned to or vested in him;
3.5.3 comply with all lawful and reasonable directions, restrictions,
rules and regulations from time to time laid down or adopted by
the Board;
3.5.4 at all times give to the Board (in writing, if so requested)
such information, advice and explanations as it may require in
connection with matters relating to his employment under this
agreement or with the business of the Subsidiary or any company
in the Group;
3.5.5 disclose to the Board on a timely basis (in writing if so
requested) all facts and matters which may or do give rise to a
conflict between the Executive's personal interests and those of
the Subsidiary or the Group; and
3.5.6 carry out his duties and exercise his powers jointly with any
other person who may at any time be appointed by the Board to
act jointly with him.
3.6 The Executive shall devote himself exclusively to the performance of his
duties during normal working hours (which are 9.15am to 5.15pm) at his
place of employment and at all other times which may be necessary for
the proper performance of his duties except in the case of illness or
accident.
3.7 The Executive's place of employment shall be at the Subsidiary's
premises in Bolton and London or any other place of business within the
United Kingdom from where the Subsidiary may operate from time to time.
The Executive shall undertake such travel both within and outside the
United Kingdom as may be necessary for the proper performance of his
duties.
3.8 Notwithstanding any other provision of this agreement, the Board shall
not be under any obligation to vest in or assign to the Executive any
powers or duties and may without the need to give any reason for so
doing during any period of notice hereunder:
3.8.1 require the Executive to perform:-
3.8.1.1 all his normal duties; or
3.8.1.2 a part only of his normal duties and no other; or
3.8.1.3 such other duties as it may require and no others; or
3.8.1.4 no duties whatever; and
3.8.2 suspend or exclude the Executive from all or any premises of the
Subsidiary and any company in the Group; and
3.8.3 require the Executive not to contact any customers, clients,
suppliers or employees of the Subsidiary or any company in the
Group in connection with the business of the Subsidiary or the
Group; and
3.8.4 require the Executive immediately to resign from any
directorships of the Subsidiary or any company in the Group.
The Executive's salary will not cease to be payable (in whole or in
part) nor will he cease to be entitled to any other benefits under this
agreement by reason only of such requirement as is described in this
clause 3.8.
3.9 If the Executive fails to make himself available for work during any
period of notice of termination of the Executive's employment, other
than pursuant to clause 3.8 or in accordance with clauses 6 or 7 or with
the prior written permission of the Board, the Executive shall not be
entitled to any payment of salary or to any benefits in respect of such
absence.
3.10 The Executive shall under no circumstances whatsoever either directly or
indirectly receive or accept for his own benefit any commission, rebate,
discount, gratuity or profit from any person, company or firm having
business transactions with any company in the Group unless previously
agreed with the Board. The restrictions set out in this clause 3.10
shall not apply to travel and entertainments customarily provided to
executives in positions similar to that of the Executive in the normal
course of business. For the avoidance of doubt, this will apply to such
travel and entertainment provided by customers of and suppliers to the
Company.
4. REMUNERATION
4.1 The Executive's remuneration shall be a monthly salary (which shall
accrue from day to day) at the rate of (pound)20,833.33 less PAYE and
employees National Insurance payable by bank credit transfer in equal
monthly installments in arrears on or about the 25th day but not later
than on the last day of each month. The basic salary shall be deemed to
be inclusive of any director's fees which the Executive may receive or
be entitled to receive from the Subsidiary or any company within the
Group.
4.2 The Executive shall participate in the Distribution Participation Plan
on terms described therein.
4.3 The Executive shall have the right to participate on the same terms as
the other senior level executives of the Company in any savings,
pension, retirement or other similar plan offered by the Company
including all tax deferred savings and pension plans
4.4 The Executive shall receive health insurance and life insurance cover
consistent with that provided to other senior level executives.
5. EXPENSES
5.1 The Company shall repay (or shall cause the Subsidiary to repay) to the
Executive all expenses reasonably and properly incurred by the Executive
in the performance of his duties under this agreement upon appropriate
evidence of such expenditure being provided to the Company.
5.2 The Executive undertakes to observe the Company's policy on expenses
from time to time.
5.3 The Company shall repay to the Executive the cost of coach class airline
tickets between Manchester or London, UK and Boston, MA (USA) or such
similar points as the Executive deems appropriate as such costs are
incurred from time to time.
5.4 The Company shall hear the reasonable expenses (either directly or
through re-imbursement) associated with moving household from the USA to
the UK and for a return move should such return move take place within
one year of the move to the UK.
5.5 Telecom expenses including mobile phone service and terrestrial calls.
Office and computing equipment as needed from time to time.
6. HOLIDAYS
6.1 The Executive shall be entitled to paid holidays of 26 working days in
each calendar year in addition to all usual UK bank and other public
holidays.
6.2 Upon termination of the Executive's employment for any reason other than
gross misconduct or other breach of this agreement the Executive shall
be entitled to pay in lieu of any accrued holiday entitlement. Upon
termination of the Executive's employment for any reason, the Executive
shall be required to repay to the Company any basic salary received in
respect of holiday taken in excess of the accrued holiday entitlement.
Any such sum due to the Company may be deducted from any remuneration or
other sums otherwise payable by the Company to the Executive.
7. ILLNESS OR ACCIDENT
7.1 The Executive shall be entitled to receive the basic salary and other
contractual benefits to which he is entitled under this agreement if
prevented from performing his duties through illness, accident or other
such incapacity only for a period not exceeding 3 consecutive months or
an aggregate of 65 working days (whether consecutive or not) in any 12
consecutive calendar months. The Executive's entitlement to basic salary
and other benefits under this agreement shall cease upon the expiry of
the period referred to in this clause. Entitlement to basic salary and
other benefits under this agreement shall resume at such time as the
Executive is capable of and resumes performance of his duties.
7.2 The basic salary payable by the Company to the Executive in
circumstances where clause 7.1 applies shall abate by the amount of
sickness or disability benefit to which the Executive may be entitled
under any scheme maintained by the Group or under any relevant
legislation.
7.3 The Executive shall notify the Company of any illness, accident or other
incapacity in such form and thereafter at such intervals as the Company
may require.
7.4 The Executive may be required at the request of the Company during the
course of his employment to attend a doctor or clinic nominated by the
Company for the purpose of a comprehensive medical examination at the
cost of the Company to determine his fitness for continued employment
and shall co-operate in ensuring the prompt delivery of the relative
report to the Company. Notwithstanding the provisions of the Access to
Medical Reports Act 1988, the Executive will permit the Company access
to any medical report relating to the physical or mental health of the
Executive and relevant to the ability of the Executive to perform his
duties from a medical or other practitioner who is or has been
responsible for the clinical care or treatment of the Executive.
8. AUTHORITY
The Executive shall not without the prior consent of the Board (as
evidenced by a resolution of the Board):-
8.1 incur on behalf of the Subsidiary or any company in the Group any
capital expenditure in excess of such stun as may be authorised from
time to time; or
8.2 enter into on behalf of the Subsidiary or any company in the Group any
commitment, contract or arrangement otherwise than in the normal course
of business or outside the scope of his normal duties or of an unusual
or onerous or long term nature.
9. CONFIDENTIALITY
9.1 The Executive shall not, whether during or after the termination of his
employment except in the proper course of his duties, use or divulge and
shall use his best endeavors to prevent the use, publication or
disclosure to any person, firm or company of any Confidential
Information which has or may come to his knowledge in the course of his
employment save that this obligation shall not extend to any matters
which are or shall be in the public domain otherwise than due to the
default of the Executive.
9.2 Any Confidential Information as shall be made or received by the
Executive during the continuance of this agreement shall be the property
of the Company and all such property and copies thereof shall be
surrendered by the Executive to the Company, immediately upon the
termination of this agreement (howsoever occasioned) in accordance with
clause 15 or at the request of the Board at any time during the course
of his employment.
9.3 The Executive agrees that the provisions of this clause 9 are without
prejudice to any other duties of confidentiality owed by the Executive
to the Company whether express or implied and will remain in force after
termination of his employment with the Company.
9.4 Nothing in this clause 9 shall restrict the Executive from disclosing
(but only to the proper recipient) any Confidential Information which
the Executive is required to disclose by law or any order of the court
or any relevant regulatory body, provided that the Executive shall,
unless obliged by law, have given prior written notice to the Company of
the requirement and of the information to be disclosed and allowed the
Company an opportunity to comment on the requirement before making the
disclosure.
10. OUTSIDE INTERESTS
The Executive shall not, when employed by the Company, be directly or
indirectly concerned or interested in any trade or occupation or
business other than the businesses of the Subsidiary and the Group
except that (i) the Executive may pursue business interests that are not
competitive with the business of the Subsidiary and the Group so long as
such efforts do not exceed 20 hours in any calendar month, and (ii)
unless the Company and the Executive agree to an extension of the term
of this Agreement, during the last sixty (60) days of the teen,
Executive may pursue other employment opportunities so long as they do
not inhibit the discharge of Executive's duties hereunder.
In this clause 10 the expression "occupation" shall include membership
of Parliament or of a local authority, council or any other public or
private work (whether for profit or otherwise).
11. DISCIPLINE AND GRIEVANCES
11.1 There are no disciplinary rules as at the date of this agreement
applicable to the Executive's employment hereunder nor any specific
provisions for dealing with any grievance.
11.2 In order to investigate a complaint or allegation against the Executive
of misconduct and to allow the Company to carry out whatever
investigations it deems appropriate, the Company may for a maximum
continuous period of 30 working days suspend the Executive on full pay
and with other contractual benefits and require the Executive:
11.2.1 not to enter any premises of the Company or any company in the
Group; and
11.2.2 to abstain from contacting any customers, clients, employees or
suppliers of the Company or any company in the Group.
The Executive shall not be employed by or provide services to any third
party during the period for which he is suspended pursuant to this
clause 11.2.
12. DIRECTORSHIPS
12.1 If required by the Board to act as a director of any company in the
Group in addition to the Company in accordance with clause 3.4 or if
appointed by agreement with the Board as a director of any corporation
in which the Group may have an interest, the Executive shall resign from
any such directorship as the Board may from time to time require. A
request for any such resignation shall not constitute termination of
this agreement or constructive dismissal of the Executive.
13. TERMINATION BY DEFAULT
13.1 Notwithstanding any other provision of this agreement, the Board may at
any time in writing terminate the Executive's employment with immediate
effect and without notice of payment in lieu of notice and without
prejudice to any rights or claims which it may have against him if at
any time the Executive shall:
13.1.1 be guilty of gross misconduct or gross neglect of his duties; or
13.1.2 commit a serious breach of this agreement; or
13.1.3 commit any repeated or continued material breach of his
obligations under this agreement; or
13.1.4 fail to maintain a satisfactory standard of conduct or
performance; or
13.1.5 commit any act of dishonesty or be guilty of conduct (whether or
not connected with his employment) tending to bring the Company,
any company in the Group or himself into disrepute or otherwise
to affect prejudicially the interests of the Company or any
company in the Group; or
13.1.6 be convicted of any offence under Part V of the Criminal Justice
Act 1993 or under any order or regulation relating to insider
dealing; or
13.1.7 be convicted of any criminal offence (excluding 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); or
13.1.8 commit a material breach of the rules of any relevant regulatory
authority.
13.2 The Company's right immediately to terminate the Executive's employment
under this clause 13 is without prejudice to any rights it may have to
do so derived from common law.
13.3 For the avoidance of doubt, if the Executive has committed any of the
activities specified in clauses 13.1.1 to 13.1.10, and the Board has
terminated his employment then:
13.3.1 the Company shall be liable only to pay the Executive up until
the date the termination notice is served (salary shall be
prorated up to such date) and
13.3.2 the provisions of clause 2.2.1 shall cease to apply.
14. EXECUTIVE'S OBLIGATIONS UPON TERMINATION
On the termination of the Executive's employment for any reason:
14.1 the Executive shall forthwith deliver to the Company all records
documents accounts letters and papers of every description within his
possession or control relating to the affairs and business of the
Company or any company in the Group and any other property belonging to
the Company or any company in the Group provided that the Executive
shall not be obliged to return any papers which he has received in the
capacity of shareholder of the Company or any company in the Group.
14.2 The Executive agrees that, during the term of this agreement and for one
year following the termination of this agreement not to solicit or
entice or endeavour to solicit or entice any person to breach his
contract of employment or contract for services with the Company or any
company in the Group or procure or facilitate such by any person firm or
company.
15. SURVIVAL OF COVENANTS ON TERMINATION
Notwithstanding the termination of this agreement, save as otherwise
provided herein, it shall remain in full force and effect to the extent
that the obligations of the Executive which are expressed to operate
thereafter or are of a continuing nature are concerned and may be
enforced against the Executive accordingly.
16. WARRANTY
The Executive warrants that by virtue of entering into this agreement
and performing the duties set out in this agreement he will not be in
breach of any contract of service or for the provision of services or
any partnership agreement and will, save as implied by law, be free from
all agreements, arrangements or other restrictions restricting his right
to compete with any person or to solicit clients or employees of any
person or in any way restricting hint from performing this agreement in
accordance with its terms.
17. NOTICES
17.1 Any notice to be given hereunder shall be in writing.
17.2 Any notice to be given to the Company shall be sufficiently served
either if delivered personally or sent by first class post to the
Company's registered office for the time being.
17.3 Any notice to the Executive shall he sufficiently served if delivered to
him personally or sent by first class post to his usual or last known
place of abode.
17.4 Any notice if posted shall be deemed to have been served at the time
when in the ordinary course of post such notice would have been
received.
18. GENERAL
18.1 This agreement shall be governed and construed in all respects in
accordance with the laws of England and Wales and the parties agree to
submit to the non-exclusive jurisdiction of the Courts of England and
Wales.
18.2 The parties hereto agree that there shall be no obligation on the
Company or any company in the Group to provide to any person a reference
in respect of the Executive whether during or after the termination of
his employment hereunder.
18.3 For the purposes of this agreement, and notwithstanding any of the other
provisions of this agreement, the Company will be entitled to carry out
all or any of its obligations under this agreement, whether as to
payment of remuneration or otherwise, through any company or companies
in the Group as the Board may from time to time expressly determine and
the Company may enforce the provisions of this agreement either directly
as a party to it or as an agent for and on behalf of any such company in
the Group.
18.4 The parties hereto agree and acknowledge that neither has, in entering
into this agreement, relied upon any representation made by the other
save as set out herein.
19. VARIATION
This agreement:-
19.1 contains the whole of the terms agreed in respect of the Executive's
employment as from the Commencement Date;
19.2 is in substitution for any other previous agreement or arrangement in
respect of his employment by any company in the Group; and
19.3 shall only be capable of being varied by a supplemental agreement or
memorandum in writing signed by or on behalf of the parties hereto.
EXECUTED AS A DEED by the COMPANY
In the presence of.-
Director Director/Secretary
SIGNED AS A DEED and DELIVERED by
the EXECUTIVE in the presence of--