Employment Agreement - Last Minute Network Ltd. and David Howell
EMPLOYMENT AGREEMENT
incorporating a Statement of Terms pursuant to
section 1, Employment Rights Act 1996
This Agreement is made by way of deed on 21st June 2001 between DAVID HOWELL of
Cubbins, Dairy Lane, Crockham Hill, Westerham, Kent TN8 6RA and LAST MINUTE
NETWORK LIMITED trading as lastminute.com of 4 Buckingham Gate, London SW1E 6JP
("the Company").
WHEREAS it is the intention of the parties that this document be executed as a
deed.
1. JOB TITLE/DUTIES
1.1. Your job title is Chief Financial Officer.
1.2. You shall be appointed to the Board of Directors of Lastminute.com
plc at the Board Meeting on 4 July 2001 and shall remain as a member
of the Board throughout your employment with the Company.
2. STARTING DATE
2.1. Your employment with us will start on 2nd July 2001 and shall
continue until terminated by notice in writing in accordance with
clause 2.2.
2.2. Subject to clauses 2.3 and 5, we may terminate your employment at
any time by giving you six months' notice in writing.
Unless otherwise agreed, you will give us a minimum of six months'
notice of your leaving.
2.3. If you are guilty of gross misconduct including dishonesty, gross
negligence or any other serious misconduct, we shall be entitled to
terminate your employment with immediate effect.
2.4. If either party gives notice to terminate this agreement, for a
period not exceeding the notice period referred to in clause 2.2, you
may be required by us in our absolute discretion not to attend your
place of work at any time and not to perform any duties for the
Company or to perform only such duties, specific projects or tasks as
are assigned to you expressly by the Company (provided that such
duties, projects or tasks are consistent with your status) provided
that you will be entitled to receive full pay and benefits (including
bonus) during such period.
3. PERIOD OF CONTINUOUS EMPLOYMENT
Your period of continuous employment with us will start on 2nd July 2001.
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4. REMUNERATION
4.1. Your salary is pound sterling 140,000 per annum, payable in equal
monthly instalments in arrears by direct transfer into your bank
account on or before the last day of each month. Your salary will
accrue from day to day and will be adjusted during the month in which
you start and finish your employment with us according to the number
of days you work during that month.
You will also be entitled to an annual discretionary bonus of up to
30% of base salary which will be paid, at your option, in cash or
allocated as an additional grant of share options, (in addition to
those granted to you under clause 12), on the anniversary of joining
the Company. The targets upon which the bonus is calculated shall be
agreed between the Company and you by no later than 1 September 2001.
Such payment will be subject to deductions for tax and national
insurance and any other deductions that may be required from time to
time.
4.2. Your salary shall be reviewed by the Board annually on the anniversary
of the commencement of your employment.
4.3. We shall be entitled to make deductions from your remuneration in
respect of any overpayments made to you by us.
5. LIQUIDATED DAMAGES
5.1. The Company may terminate the contract immediately or on short notice,
and should it elect to do so (other than in accordance with clause
2.3), the Company shall make a payment in lieu of any applicable
period of notice of an amount in cash equivalent to the total amount
referred to in clause 5.2 (calculated pro rata where short notice is
given). The Company shall pay such amount to you in one lump sum
(subject to deduction of applicable tax and national insurance but
without any deduction for mitigation) on the date of termination of
your employment (''the Termination Date'').
5.2. The total amount of cash referred to in clause 5.1 is the aggregate
of:-
5.2.1 6 months' salary (as at the Termination Date); and
5.2.2 a sum equal to the cost the Company would have incurred in
providing you with the benefits referred to in clause 11 had
your employment continued for a period of 6 months following
the Termination Date;
5.2.3 a sum in lieu of the bonus(es) which would have been paid in
respect of the period 6 months following the Termination Date
pro rated to reflect the period since the last bonus payment
(assuming the Company exercised its discretion in your favour,
or, if not, the date you would have received the last bonus
payment) or if the
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term of your employment is less than one year the date of
commencement of your employment up to the date 6 months
following the Termination Date.
5.3. The amounts payable pursuant to clause 5.1 shall be in lieu of any
notice, or other benefits or payments to which you may otherwise be
entitled on termination of this Agreement but without prejudice to
your statutory rights.
6. EXPENSES
We will reimburse to you during your employment (against receipts or other
appropriate evidence) all expenses properly and reasonably incurred by you
in the course of your duties.
7. WORKING HOURS
Your normal working hours are from 9.30 am to 6:30 pm Monday to Friday,
with a one-hour lunch break, but the requirements of your employment do
call for some flexibility and you will be expected to work slightly
different hours from time to time. In particular you agree, where
necessary, to work on average in excess of 48 hours per week.
8. PLACE OF WORK
Your normal place of work is at 4 Buckingham Gate, London SW1E 6JP.
9. HOLIDAYS AND HOLIDAY PAY
Your holiday entitlement is 25 days per year, plus all statutory, bank and
public holidays in England and Wales. Deductions from the final salary due
to you on the termination of your employment will be made in respect of any
holidays taken in excess of your entitlement. You will be entitled to any
pay in lieu of holiday accrued but not taken only at the end of your
employment save where it has been terminated in accordance with clause 2.3.
During holidays you are entitled to your normal rate of pay.
10. ABSENCE THROUGH SICKNESS OR INJURY AND SICKNESS PAY
10.1. In the event of sickness or injury you are to send promptly to us a
self-certificate, in a form obtainable from the office for an
absence of up to seven days and thereafter an intermediate
certificate each week signed by a medical practitioner until your
return to work.
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10.2. You shall continue to be paid and continue to be entitled to any
other contractual benefits during absence due to illness, accident or
other incapacity for a total of 13 weeks in any period of fifty-two
consecutive weeks. For any additional or continuing absence after
that due to illness, accident or other incapacity, payment of salary
and continued provision of contractual benefits under this Agreement
shall be at the discretion of the Company.
10.3. Any payment of salary or provision of benefits shall be inclusive of
any statutory sick pay or social security benefits to which you may
be entitled. You are required to co-operate in the maintenance of
necessary records for Statutory Sick Pay purposes and for the purpose
of calculating entitlement to Statutory Sick Pay applicable to your
employment. Qualifying days are Monday to Friday.
10.4. Subject to the provisions of the Access to Medical Reports Act 1988,
you agree to be examined at our expense by a doctor nominated by us
if at any time we so request and you authorise such doctor to
disclose and to discuss with us and our advisers the results of such
examinations.
11. PENSION SCHEME, INSURANCES AND HEALTHCARE
11.1. You will be entitled to a sum equal to 14% of your salary under
clause 4.1 for the purpose of making contributions, at your option,
into either a personal pension fund of your choice or the Company
pension scheme, such sum to accrue from day to day and to be paid to
you in equal monthly instalments in arrears by direct transfer into
your bank account on or before the last day of each month.
A Contracting Out Certificate is not in force in respect of your
employment.
11.2. You, your spouse and your dependants under the age of 25 will be
entitled to participate in the Company healthcare scheme. Your
participation in the healthcare scheme will be at the Company's
expense. You will pay to the Company the cost to the Company of the
participation by your spouse and your dependants under the age of 25
in the healthcare scheme.
11.3. In addition, you will be entitled to participate at the Company's
expense in (a) its permanent health and disability insurance scheme
and (b) its life insurance scheme which provides for payment of a sum
equal to four times your salary payable under clause 4.1 as at the
date of your death.
12. SHARE OPTIONS
The Company has introduced a Share Option Scheme ("the Scheme") in which
you are eligible to participate. On 2nd July 2001, you will be granted an
option to purchase 1,000,000 ordinary shares in the capital of
lastminute.com plc ("the
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Option"). The Option shall be subject to the rules of the Scheme from time
to time in force.
13. CONFIDENTIALITY
13.1. You shall not during or at any time after the termination of your
employment with the Company use for your own purposes or disclose
to any third party any Confidential Material and shall use your
best endeavours to prevent such publication or disclosure.
13.2. All Confidential Material and all other documents, papers and
property which may have been made or prepared by you, or at your
request or have come into your possession or under your control in
the course of your employment or which relate in any way to the
Company, the business (including prospective business) or affairs
of the Company or of any customer, supplier, agent, distributor or
sub-contractor of the Company shall as between the Company and you
be deemed to be the property of the Company. You shall deliver up
all such documents and other property, including all copies, to the
Company immediately upon the termination of your employment or at
any earlier time on demand.
13.3. You shall immediately inform the Company if you become aware of
the possession, use or knowledge of any of the Confidential
Material by any person not authorised to possess, use or have
knowledge of the Confidential Material, whether during or after
your employment and shall at the Company's request provide such
reasonable assistance as is required to deal with such event.
13.4. The previsions of this clause shall not apply to any Confidential
Material which is in or enters the public domain other than by
breach of this agreement, is obtained from a third party who is
lawfully authorised to disclose such information, or is authorised
for release by the prior written consent of the Board.
13.5. Nothing in this clause shall prevent you from disclosing
Confidential Material where it is required to be disclosed by
judicial, administrative, governmental or regulatory process in
connection with any action, suit, proceeding or claim or otherwise
by applicable law.
For the purpose of this clause "Confidential Material" means any
information relating to the Company or the business, prospective
business, technical processes, computer software (both source code
and object code), intellectual property rights or finances of the
Company, or compilations of two or more items of such information
whether or not each individual item is in itself confidential,
including without limitation price lists, lists of customers and
suppliers (both current and those who were customers or suppliers
during the previous two years), which comes into your possession by
virtue of your employment, and which the Company regards, or could
reasonably be expected to regard, as confidential, whether or not
such information is reduced to a tangible form or marked in
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writing as "confidential" and any and all information which
has been or may be derived or obtained from any such
information.
14. RESTRICTIONS
14.1. You agree that you will not either alone or jointly with another or
others, whether as principal agent, director, partner, shareholder,
employee, company or in any other capacity, whether directly or
indirectly through any other person, firm or company and whether for
your own benefit or that of others:-
14.1.1 for 6 months after the termination of your employment be
employed in or engaged by or interested or concerned in a
Competing business (or part thereof) in any country in
Europe in which on the termination of your employment to the
Company is operating;
14.1.2 for 6 months after the termination of your employment
entice, induce or encourage a Customer or a Prospective
Customer to transfer or remove custom from the Company;
14.1.3 for 6 months after the termination of your employment
solicit or accept business from a Customer or a Prospective
Customer for the supply of Relevant Services;
14.1.4 for 6 months following the termination of your employment,
for a Competing Business solicit, interfere with or
endeavour to entice away or engage or employ or offer
employment to (or procure or assist the soliciting,
interference with, enticement, engagement, employment or
offering) any Employee, or do any act whereby such Employee
is encouraged to terminate his employment, appointment or
contract with us, whether or not such person would by reason
of terminating his service with us commit a breach of his
contract.
14.2. You must not at any time during or after the termination of your
employment use any name used by the Company at the date of the
termination of your employment or any name likely to cause confusion
with it in the minds of members of the public for the purposes of a
Competing Business whether by using such name as part of a corporate
name or otherwise.
14.3. You must not at any time after the termination of your employment
represent yourself as being employed by the Company.
For the purpose of this clause:-
"Competing Business" means a business or concern which is engaged in
a business competitive with that carried out by the Company at the
date of termination of your employment with which you have been
involved
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during the 12 months preceding such date. This shall include,
without limit, E-bookers, Expedia, Travelocity, Teletext, Priceline,
Online Travel Portal and Thomascook.com; and
"Customer" means any person, firm or company who during the 12
months preceding the date of termination of your employment was a
customer of the Company (whether or not services were actually
provided during such period) for the purpose of a Relevant Business
and with whom you materially dealt during that period or were in
possession of confidential information about such customer in the
performance of your duties for the Company; and
"Employee" means any of our employees, directors, consultants or
independent contractors at the date of termination of your
employment or who was such an employee, director or independent
contractor at any time in the 12 months preceding such date and in
each case who worked or provided services in a senior executive,
managerial, sales, programming or design capacity or has
confidential information relating to our business or contact with
any Customer or Prospective Customer and with whom you had material
dealings in the performance of your duties during the 12 months
immediately preceding the date on which your employment terminates;
and
"Prospective Customer" means any person, firm or company with whom
at the date of termination of your employment the Company is or has
during the 3 months preceding such date been in negotiations (save
where the Company has broken off such negotiations) with a view to
such person, firm or company becoming a customer of such company and
with whom you were involved in such negotiations or services; and
"Relevant Business" means any business of the Company in which,
pursuant to your duties, you were materially involved at any time
during the 12 months preceding the date of termination of your
employment; and
"Relevant Services" means goods or services competitive with those
which on the termination of your employment the Company was
supplying or negotiating or actively and directly seeking to supply
to a Customer for the purposes of a Relevant Business.
14.4. If the Company requires you not to perform any of your duties and/or
excludes you from the Company's premises ("garden leave") as set out
in clause 2.4 for some or all of any period of notice, the period of
the post-termination restrictions set out in this clause 14 shall be
reduced by the length of garden leave served before the Termination
Date.
14.5. Each of the restrictions contained in his clause constitutes an
entirely separate and independent restriction and is considered by
the parties to be reasonable and necessary for the protection of the
legitimate interest of the company but, if any such restriction or
part of it shall be found void, invalid, illegal or unenforceable by
any court of competent jurisdiction but would be valid if some words
were deleted from it, or the period of it
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reduced, or area covered or range of activities reduced, such
restriction shall apply with such modification as may be necessary
to make it valid and effective.
14.6. In the event of any clause or part of a clause contained in this
Agreement being declared invalid of unenforceable by any court of
competent jurisdiction, all other clauses or parts of clauses
contained in this Agreement shall remain in full force and effect
and shall not be affected thereby.
15. NON-EXECUTIVE DIRECTORSHIP
The Company agrees that:
15.1. you may continue to hold your non-executive directorship of Nestor
Healthcare Group plc for the duration of your employment with the
Company; and
15.2. you shall be entitled dedicate up to 15 working days' per year in
order to carry out your duties in connection with your appointment
(such days as you intend to dedicate to be notified by you to the
Company not less than 7 days in advance).
16. INTELLECTUAL PROPERTY
16.1. If during the term of your employment you create any invention,
copyright work, database, discovery or process or any improvement of
any kind ("Work") relating or capable of being applied to the
business of the Company, then any intellectual property right
arising or obtainable in respect of any such Work shall be the
property of the Company. You shall at our request and expense do all
acts necessary to secure appropriate forms of protection for the
intellectual property and/or vest ownership fully in the Company.
16.2. Decisions as to the protection or exploitation of any intellectual
property shall be in the absolute discretion of the Company.
16.3. You hereby irrevocably appoint the Company to be your attorney in
your name and on your behalf to execute documents, to use your name
and to do all things which may be necessary or desirable for the
Company to obtain for itself or its nominees the full benefit of the
intellectual property and you agree that a certificate in writing,
signed by and director or the secretary of the Company or any
instrument or act which falls within the authority hereby conferred
shall be conclusive evidence that such is the case so far as any
third party is concerned.
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17. DISCIPLINARY RULES AND GRIEVANCE PROCEDURES
Any matter of discipline will be considered and determined by the Board of
directors of the Company, whose decision will be final. If you have any
grievance relating to your employment, you should apply in writing to the
Group Managing Director of the Company.
18. HEALTH AND SAFETY
The policy of the Company is to regard the promotion of health and safety
measures as a mutual objective for management and employees at all levels.
19. COMPANY RECONSTRUCTION
You will have no claim in respect of the termination of your employment if:
19.1. such termination is by reason only of the liquidation of your
employer for the purposes of amalgamation or reconstruction; and
19.2. you are offered comparable employment with a company resulting from
such amalgamation or reconstruction on terms no less favourable than
the terms hereof.
20. OTHER AGREEMENTS
All other statements (if any) of the terms of your employment are hereby
abrogated and superseded. There are no collective agreements which directly
affect the terms and conditions of your employment.
21. CHOICE OF LAW
This agreement shall be governed by English law and each party submits to
the non-exclusive jurisdiction of the English courts.
22. CHANGES IN PARTICULARS OF EMPLOYEE
You must notify us in writing:
22.1. of any change in your name, address, marital status or next-of-kin
within one month of such change; and
22.2. forthwith of your conviction for a criminal offence or if you become
bankrupt, apply for or have made against you, a receiving order,
make any composition with your creditors or commit any act of
bankruptcy.
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IN WITNESS whereof this Agreement has been executed as a deed and delivered the
day and year first before written.
EXECUTED as a deed by
Last Minute Network Limited
acting by
Director
[Signatures]
------------------------------------------
Director/Secretary
SIGNED as a deed by
David Howell
[Signature of David Howell]
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[Signature of N. Alcorn]
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Witness
[Printed Signature of N. Alcorn]
Address
Top Flat, 6 Crouch Hill Rd, London, N8 8HU
Occupation
Head of HR, (lastminute.com)
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