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Dated 16 FEBRUARY
2007
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Clause
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Subject Matter |
Page
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1.
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DEFINITIONS
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1
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2.
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COMMENCEMENT
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1
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3.
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ROLE
AND RESPONSIBILITIES
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2
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4.
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DIRECTORSHIPS
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3
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5.
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TIME
COMMITMENT
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3
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6.
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OUTSIDE
BUSINESS INTERESTS
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4
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7.
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SALARY
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4
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8.
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BONUS
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4
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9.
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BENEFITS
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5
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10.
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INSURANCE
BENEFITS
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6
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11.
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VACATION
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7
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12.
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SICKNESS
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7
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13.
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BUSINESS
EXPENSES
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7
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14.
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CONFIDENTIAL
INFORMATION
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7
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15.
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DATA
PROTECTION
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9
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16.
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INTELLECTUAL
PROPERTY
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9
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17.
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DURATION
AND TERMINATION
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10
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18.
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GARDEN
LEAVE
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11
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19.
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PAYMENT
IN LIEU OF NOTICE
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11
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20.
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OBLIGATIONS
ON TERMINATION
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12
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21.
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RESTRICTIONS
AFTER TERMINATION
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13
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22.
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DEFINITIONS
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14
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23.
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RECONSTRUCTION
AND AMALGAMATION
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15
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24.
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DISCIPLINARY
AND GRIEVANCE PROCEDURES
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15
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25.
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NOTICES
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16
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26.
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ENTIRE AGREEMENT AND PREVIOUS CONTRACTS |
16
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27.
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PROPER
LAW
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17
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28.
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CONSTRUCTION
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17
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(1)
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PROPERTY INVESTMENT EXCHANGE
LIMITED, whose registered office is at 25 Harley Street, London,
W1G 9BR (the "Company");
and
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(2)
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PAUL MARPLES, of 115
Palewell Park, London SW14 8JJ (the "Executive").
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1.
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DEFINITIONS
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2.
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COMMENCEMENT
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2.1
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The
Executive's employment on the terms of this agreement (the "Appointment") shall
commence on the Commencement Date.
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2.2
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The
Executive's period of employment with the Company began on 1 September
2000.
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2.3
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The
Executive represents and warrants to the Company that he is neither
prevented nor restricted by any court order or any obligation to any third
party (whether express or implied) from entering into this agreement or
performing any of his obligations under it and undertakes to indemnify the
Company against any claims, costs, damages, liabilities or expenses which
the Company may incur as a result of any claim that he is in breach of any
such obligations.
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2.4
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The
Executive has been provided with details of any rules, policies and
procedures appropriate to his employment. These do not form
part of the Executive's contract of employment with the
Company. To the extent that there is a conflict between the
terms of this agreement and any such rules, policies or procedures then
this agreement shall prevail.
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3.
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ROLE
AND RESPONSIBILITIES
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3.1
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The
Executive shall perform the duties of European Product Director or such
other role as the Board, acting by the Chief Executive Officer or such
other officer as the Board determines ("CEO"), may consider
appropriate.
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3.2
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The
Executive shall:
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3.2.1
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devote
the whole of his working time and attention to the duties assigned to
him
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3.2.2
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faithfully
and diligently serve the Company (and all Group
Companies);
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3.2.3
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use
his best endeavours to promote and protect the interests of the Company
(and all Group Companies);
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3.2.4
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comply
with his fiduciary duties;
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3.2.5
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obey
all reasonable and lawful directions given to him by or under the
authority of the Board and the CEO;
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3.2.6
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perform
services for and hold offices in any Group Company without additional
remuneration (except as otherwise
agreed);
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3.2.7
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carry
out his duties and exercise his powers jointly with such person or persons
as the Board may appoint to act jointly with
him;
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3.2.8
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work
at such of the Company's offices within the Greater London Metropolitan
area as the Board may from time to time
require;
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3.2.9
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travel
to such places (whether in or outside the United Kingdom) by such means
and on such occasions as the Board may from time to time
require;
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3.2.10
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make
such reports to the CEO, the Board and the board of directors of the
Company's holding company on any matters concerning the affairs of the
Company or any Group Company as are reasonably
required;
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3.2.11
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not
enter into any arrangement on behalf of any Group Company which is outside
its normal course of business or his normal duties or which contains
unusual or onerous terms;
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3.2.12
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comply
with any code of practice issued by the Company or CoStar from time to
time and all requirements, recommendations, rules and regulations (as
amended from time to time) of all regulatory authorities relevant to the
Company and any Group Company with which the Executive is concerned;
and
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3.2.13
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consent
to the Company monitoring and recording any use that he makes of its
telecommunication or computer systems and will comply with any policies
that it may issue from time to time concerning the use of such
systems.
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4.
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DIRECTORSHIPS
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4.1
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The
Executive:
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4.1.1
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shall
hold such offices as a director or secretary (an "Office") in the Company
or any Group Company as the Board may from time to time
require;
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4.1.2
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shall
not be entitled to any additional remuneration by reason of his holding
any Office in the Company or any Group
Company;
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4.1.3
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(shall
if the Board so requests) immediately resign without claim for
compensation from any Office held in the Company and any Group Company and
the Executive irrevocably appoints the Company to be his attorney to
execute and do any such instrument or thing and generally to use his name
for the purpose of giving the Company or its nominee the full benefit of
this clause;
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4.1.4
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shall
not do anything that would cause him to be disqualified from holding any
Office;
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4.1.5
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shall
not (without the prior written approval of the Board) resign from any
Office which he holds in the Company or any Group Company or any
trusteeship which he holds as a result of the
Appointment;
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4.1.6
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shall
hold any Office in the Company (or any Group Company) subject to the
articles of association of the Company (or the relevant Group Company) as
amended from time to time.
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5.
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TIME
COMMITMENT
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5.1
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The
Executive shall work such hours as are necessary for the proper
performance of his duties.
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5.2
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Regulation
4(1) of the Working Time
Regulations 1998 (the "Regulations") limits the
average working week (calculated in accordance with the Regulations) of
each worker to a maximum of 48 hours. Whilst the parties
consider that the nature of the Executive's position is such that his
employment is not and cannot be measured and so his employment falls
within the scope of Regulation 20 of the Working Time
Regulations 1998, the Executive agrees to opt out of Regulation 4
of the Regulations, to the extent that it applies to his employment (if at
all). Should the Executive wish to terminate this opt-out then
he may do so by giving the Company not less than three months' written
notice.
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6.
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OUTSIDE
BUSINESS INTERESTS
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6.1
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Save
as a representative of the Company or with the prior written approval of
the Board, the Executive shall not at any time during the Appointment
(whether directly or indirectly, paid or
unpaid):
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6.1.1
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be
engaged or concerned in the conduct
of;
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6.1.2
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be
or become an employee, agent, partner, consultant or director of;
or
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6.1.3
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assist
or have any financial interest in,
any
other actual or prospective business or profession. For the
avoidance of doubt, the Executive shall be deemed to have an indirect
involvement or financial interest in an actual or prospective business or
profession in which a Family Member or any trust established for the
benefit of, or company controlled by, a Family Member is involved or
financially interested where such business or profession competes with the
business of any Group Company.
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6.2
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The
Executive shall be permitted to hold shares or securities of a company any
of whose shares or securities are quoted or dealt in on any recognised
investment exchange provided that:
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6.2.1
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any
such holding shall not exceed one per cent. of the issued share capital of
the company concerned and is held by way of bona fide investment only
("Investment");
and
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6.2.2
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he
complies with any applicable rules of the Company, any Group Company or
any Regulatory Authority covering the holding of shares or
securities.
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7.
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SALARY
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7.1
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The
Executive shall be paid a salary of £140,000 per annum or such other rate
as may be agreed from time to time (the "Salary") subject to such
deductions as are required by law. The Salary shall accrue from
day to day. The Salary shall be payable by bank credit transfer
in equal monthly instalments in arrears on or about the last working day
of each calendar month.
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7.2
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The
Company may deduct from any sums owed to the Executive all sums which he
properly owes the Company or any Group Company from time to
time.
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8.
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BONUS
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8.1
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The
Board may (at its absolute discretion) award the Executive bonus payments
of such amounts, being up to an annual aggregate maximum of 40% of Salary,
as the CEO may determine in his or her absolute discretion having regard
to the Executive's performance against such reasonable goals and
objectives for individual and/or Company and/or Group Company performance
as set from time to time by the CEO. If the Executive receives
any bonus payment then the Company is not obliged to make any further
bonus payments and any bonus payment will not be part of the contractual
remuneration or Salary hereunder. If the Executive's employment terminates
(or notice is served to terminate his employment) (for whatever reason) he
will not be entitled to receive any bonus payments in respect of any
period. The provisions of this clause shall not create any
contractual obligation upon the Company to pay to the Executive any bonus
in respect of any period. During the first year of the
Appointment only, the Executive bonus range will be between 10% and 40% of
Salary.
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9.
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BENEFITS
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9.1
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The
Executive shall be entitled to:
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9.1.1
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participate
in the CoStar 1998 Stock Incentive Plan (the "Plan"), subject to the
rules of the Plan as amended from time to time provided, however, that the
Executive hereby agrees that following the termination of the Appointment
for whatever reason he shall not have any claim against the Company or any
Group Company under this Agreement in respect of any rights he may have
acquired under the Plan. The Company shall, subject to the
Executive entering into and complying with the terms of this Agreement,
award the Executive 10,000 shares of restricted common stock (the "Restricted Stock") of
CoStar, vesting one-fourth on the first anniversary of the date of this
Agreement, one-fourth on the second anniversary of the date of this
Agreement, one-fourth on the third anniversary of the date of this
Agreement, and one fourth on the fourth anniversary of the date of this
Agreement. Any grant of Restricted Stock and all determinations
with regard to the Restricted Stock award shall be subject to and made in
accordance with the terms of the Plan and CoStar's form of grant agreement
thereunder; and
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9.1.2
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certain
insurance benefits as provided in clause 10
below.
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9.2
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During
the Appointment the Company shall contribute an amount equal to x% of the Salary in
equal monthly instalments in arrears to such HMRC approved pension scheme
(the "Pension
Scheme") established for the benefit of the Executive as the
Executive may notify to the Company in writing. The Executive's
contributions to the Pension Scheme shall be made by way of deduction from
the Salary. The Company's contributions to the Pension scheme
shall be subject to the rules of the scheme and the requirements of HMRC
as amended from time to time. For the purpose of this clause
x shall be
calculated having regard to the amount of the Executive's contribution to
the Pension Scheme, and as set out
below:
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Executive
Contribution to the Pension Scheme (as a % of Salary)
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x equals
(as
a % of Salary)
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Less
than 6%
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4%
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6%
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4½%
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7%
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5%
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8%
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5½%
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9%
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6%
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9.3
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The
Executive's rights under the benefit plans and schemes detailed in this
clause 9 and clause 10 below, including rights arising upon termination of
the Appointment (howsoever such termination arises) shall be exclusively
governed by the rules of such plans and schemes and the Executive shall
have no rights under this Agreement (or any alleged breach of it) to any
compensation under or in respect of such benefits, whether upon
termination of the Appointment or
otherwise.
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10.
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INSURANCE
BENEFITS
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10.1
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Subject
to clauses 10.1.1 to 10.1.4 below, during the Appointment the Executive
may participate in any permanent health insurance scheme and any life
assurance scheme with a third party insurer provided by the Company
subject to the terms and conditions of those schemes as amended from time
to time, the rules of the relevant insurance policy as amended from time
to time and his satisfying the requirements of the scheme
insurers. The Executive's participation in such a scheme shall
be on the basis that:
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10.1.1
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In
the case of any permanent health insurance
scheme:
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(a)
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the
Company shall only be obliged to make payments to the Executive to the
extent that it has received payment from the scheme insurers for that
purpose and, for the avoidance of doubt, no other sums will be due to the
Executive from the Company. The Company shall use reasonable
endeavours to assist the Executive in making and pursuing any bona fide
claim for benefits under the
scheme;
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(b)
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if
the Executive is receiving benefits under any such scheme then he will, if
requested by the Company, immediately resign from any Office held in the
Company or any Group Company
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(c)
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the
Company may by notice and with immediate effect discontinue payment (in
whole or in part) of the Salary and the provision of any benefits in
respect of any period during which the Executive shall be in receipt of
any benefits under the scheme.
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10.1.2
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without
prejudice to the Executive's statutory rights, the Company may terminate
the Executive's employment even if to do so would result in an actual or
prospective loss of entitlement to benefits under the
scheme;
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10.1.3
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the
Executive's health is not such that the Company is unable to obtain cover
or to obtain cover on terms and at a premium which the Company considers
reasonable;
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10.1.4
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the
Company may, as part of a review of insurance benefits provided to
employees within the Company or its Group Companies, change the provider
of such insurance and/or the level of cover provided and/or amend the
scheme in any other way and/or terminate the benefit of such insurance on
notice to the Executive provided that any such change, amendment or
termination is consistent with the treatment of other senior employees of
the Group Companies based in the United
Kingdom.
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11.
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VACATION
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11.1
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The
Executive shall be entitled to 25 working days' paid vacation (in addition
to the usual eight English public holidays) in each complete leave year
worked in accordance with the Company's vacation
policy.
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12.
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SICKNESS
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12.1
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Provided
the Executive complies with the Company's rules on notification and
evidence of absence due to illness or injury (as amended from time to
time) he shall be paid the Salary and receive his contractual benefits
during any absence from work due to illness or injury for an aggregate of
up to 65 working days in any period of 12 months. Such payments
shall be reduced by the amount of any insurance or other benefit to which
he is entitled as a result of his incapacity and any sickness or other
benefit to which he is entitled under social security legislation for the
time being in force. Thereafter, the Company may by notice and
with immediate effect (or from a future date specified in the notice)
discontinue payment (in whole or part) of the Salary and provision of any
benefits until such incapacity shall
cease.
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12.2
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The
Company may require the Executive to undergo examinations by medical
advisers appointed or approved by the Board and the Executive authorises
such advisers to disclose to the Company the results of such examinations
and to discuss with it any matter arising from such
examinations.
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12.3
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If
the Executive is unable to perform his duties under this agreement as a
result of ill health, accident or injury caused by actionable negligence,
nuisance or breach of any statutory duty on the part of any third party in
respect of which damages may be recoverable then the Executive will (if
requested to do so by the Board) pursue a claim against that third party
in respect of his loss of earnings for the period during which he was paid
by the Company but unable to perform his duties under this agreement and
will account to the Company for sums recovered in respect of such loss,
less any costs borne by him in connection with the recovery of such
damages or compensation.
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13.
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BUSINESS
EXPENSES
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14.
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CONFIDENTIAL
INFORMATION
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14.1
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Without
prejudice to his common law duties, the Executive shall not directly or
indirectly (save in the proper course of his duties, as
required by law or as authorised by the Board) use or communicate to any
person (and shall use his best endeavours to prevent the use or
communication of) any trade or business secrets or confidential
information of or relating to the Company or any Group Company (including
but not limited to details of (i) financial and business information,
such as information with respect to costs, commissions, fees, profits,
sales, markets, mailing lists, strategies and plans for future business,
new business, product or other development, potential acquisitions or
divestitures, and new marketing ideas; (ii) product and technical
information, such as product formulations, new and innovative product
ideas, methods, procedures, devices, machines, equipment, data processing
programs, software, software codes, computer models, and research and
development projects; (iii) marketing information, such as the identity of
the Company’s customers or any Group Company's, customers, distributors
and suppliers and their names and addresses, the names of representatives
of the Company’s or any Group Company's customers, distributors or
suppliers responsible for entering into contracts with the Company or any
Group Company, the amounts paid by such customers to the Company or any
Group Company, specific customer needs and requirements, and leads and
referrals to prospective customers; (iv) personnel information, such
as the identity and number of the Company’s or any Group Company's
employees, their salaries, bonuses, benefits, skills, qualifications, and
abilities; and (v) research methods, methods of compiling real estate
information, methods of creating the Company’s or any Group Company's
database, procedures, devices, machines, equipment, data processing
programs, software, computer models, research projects, and other means
used by the Company or any Group Company in the conduct of its business)
which he creates, develops, receives or obtains while in the service of
the Company or any Group Company. Subject to clause 14.2 below,
This restriction shall continue to apply after the termination of the
Appointment howsoever arising without limit in
time.
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14.2
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Reference
to confidential information in this clause 14 shall not include
information which is in the public domain at the time of its disclosure or
which comes into the public domain after its disclosure otherwise than by
reason of a breach of this agreement, information which was already
demonstrably known to the receiving party at the date of disclosure and
had not been received in confidence from the Company or information which
is required to be disclosed as a matter of law. It shall
include information in the public domain for so long as the Executive is
in a position to use such information more readily than others who have
not worked for the Company.
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14.3
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During
the Appointment the Executive shall not make (other than for the benefit
of the Company) any record (whether on paper, computer memory, disc or
otherwise) relating to any matter within the scope of the business of the
Company or any Group Company or their customers and suppliers or
concerning its or their dealings or affairs or (either during the
Appointment or afterwards) use such records (or allow them to be used)
other than for the benefit of the Company or the relevant Group
Company. All such records (and any copies of them) shall belong
to the Company or the relevant Group
Company.
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14.4
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The
Executive shall not during the Appointment either directly or indirectly
publish any opinion, fact or material on any matter within the scope of
the business of the Company or any Group Company (whether confidential or
not);
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14.5
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The
Executive shall not, either during the Appointment or following its
termination, make any misleading, derogatory or untrue comments or
statements (whether orally or in writing) concerning the Company, any
Group Company, its or their directors, officers or
employees.
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15.
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DATA
PROTECTION
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15.1
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The
Executive consents to the Company and other Group Companies holding and
processing information about him (for legal, personnel, administrative and
management purposes) and, in particular, holding and
processing:
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15.1.1
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his
health records and any medical reports given to or obtained by the
Company, to monitor sick leave and take decisions as to his fitness to
work or the need for adjustments in the
workplace;
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15.1.2
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any
information relating to criminal proceedings in which he has been or is
involved, for any insurance purposes and to comply with legal requirements
and obligations to third parties.
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15.2
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The
Company may make such information available to Group Companies, those who
provide products or services to the Company and Group Companies (such as
advisers and payroll administrators), regulatory authorities, potential or
future employers, governmental or quasi-governmental organisations and
potential purchasers of the Company or the business in which the Executive
works.
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15.3
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The
Executive consents to the transfer of such information to the Company's
Group Companies outside the European Economic Area in order to further its
business interests.
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16.
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INTELLECTUAL
PROPERTY
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16.1
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For
the purposes of this clause "Intellectual Property
Rights" means any and all patents, trade marks, service marks,
rights in designs, get-up, trade, business or domain names, goodwill
associated with the foregoing, copyright (including rights in computer
software and databases), topography rights (in each case whether
registered or not and any applications to register or rights to apply for
registration of any of the foregoing), rights in inventions, knowhow,
trade secrets and other confidential information, rights in databases and
all other intellectual property rights of a similar or corresponding
character which may now or in the future subsist in any part of the
world.
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16.2
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The
Executive acknowledges that because of the nature of his duties and the
particular responsibilities arising as a result of such duties which he
owes to the Company and the Group Companies he has a special obligation to
further the interests of the Company and the Group
Companies. In particular, the Executive's duties will include
reviewing the products and services of the Company and Group Companies
with a view to identifying and implementing potential
improvements.
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16.3
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The
Executive shall promptly disclose to the Board any idea, invention or work
which is relevant to (or capable of use in) the business of the Company or
any Group Company now or in the future made by him in the course of his
employment (whether or not in the course of his duties). The
Executive acknowledges that all Intellectual Property Rights subsisting
(or which may in the future subsist) in any such ideas, inventions or
works will, on creation, vest in and be the exclusive property of the
Company and if they do not do so he shall assign them to the Company (upon
its request and at its cost). The Executive irrevocably waives
any "Moral Rights" which he may have in any such ideas, inventions or
works under chapter IV of part I of the Copyright,
Designs and Patents Act
1988.
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16.4
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The
Executive hereby irrevocably appoints the Company to be his attorney in
his name and on his behalf to execute and do any such instrument or thing
and generally to use his name for the purpose of giving to the Company or
its nominee the full benefit of this clause and acknowledges in favour of
any third party that a certificate in writing signed by any director or
secretary of the Company that any instrument or act falls within the
authority hereby conferred shall be conclusive evidence that such is the
case.
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17.
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DURATION
AND TERMINATION
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17.1
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The
Appointment shall continue until
terminated:
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17.1.1
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as
provided for elsewhere in this
Agreement;
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17.1.2
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by
the Executive giving to the Company not less than three months' prior
written notice which notice may not be given so as to expire before the
second anniversary of the Commencement Date. Provided that,
following service of notice by the Executive all remuneration, contractual
benefits and/or bonus entitlements, save for Salary shall
cease;
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17.1.3
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by
the Company giving to the Executive not less than six months' prior
written notice, which notice may not be given so as to expire before the
second anniversary of the Commencement Date;
or
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17.1.4
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automatically
on the Executive's 65th birthday (being the contractual retirement
date).
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17.2
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The
Company may terminate the Appointment by notice but with immediate effect
if the Executive shall have committed any serious breach or (after warning
in writing) any repeated or continued material breach of his obligations
to the Company or (in the reasonable opinion of the Board and after
warning in writing) shall have failed to perform his duties to a
satisfactory standard or shall have been guilty of any act of gross
negligence, dishonesty or serious misconduct or any conduct which (in the
reasonable opinion of the Board) tends to bring himself, the Company or
any Group Company into disrepute or shall be declared bankrupt or shall
compound with his creditors or shall have been convicted of any criminal
offence (other than an offence under any road traffic legislation in the
United Kingdom or elsewhere for which a fine or non-custodial penalty is
imposed); or shall have been disqualified from holding any office which he
holds in any Group Company or resigns from such office without prior
written approval of the Board; or shall have been prevented by illness,
injury or other incapacity from fully performing his obligations to the
Company for an aggregate of one hundred and thirty working days in any
period of twelve months; or shall have committed any breach of the Stock
Purchase Agreement entered into by the Company and any Group Company dated
as of the Commencement Date or shall have refused or failed to abide by or
comply with the directives of the Board or of CoStar or shall have
materially violated the CoStar Code of Conduct or abuses alcohol or drugs
(legal or illegal) other than prescription drugs taken under the
directions of a physician and in accordance with those
directions.
|
|
17.3
|
In
the event of termination by the Company in accordance with
Clause 17.2 above, the Executive shall forfeit all unvested
Restricted Stock and any claim in respect of unpaid bonus for any period
whatsoever.
|
|
17.4
|
Any
delay by the Company in exercising such right to terminate shall not
constitute a waiver thereof.
|
|
18.
|
GARDEN
LEAVE
|
|
18.1
|
Notwithstanding
any other provision in this agreement the Company is under no obligation
to provide the Executive with work and the Board may (if either party
serves notice to terminate the Appointment or if the Executive purports to
terminate the Appointment without due notice and the Company has not
accepted that resignation) require the Executive to perform no duties
whatsoever or such duties as it may reasonably require and may exclude the
Executive from any premises of any Group Company without having to give
any reason for so doing.
|
|
18.2
|
During
any period in which the Company exercises its rights under clause 18.1
("Garden Leave")
the Executive shall:
|
|
18.2.1
|
remain
an employee of the Company and be bound by the terms of this agreement (in
particular clauses 6 and 14 and
16);
|
|
18.2.2
|
not
have any contact or communication with any client or customer, employee,
officer, director, agent or consultant of the Company or any Group Company
except any member of the Board;
|
|
18.2.3
|
take
and be deemed to be taking any period of accrued but unused holiday
entitlement;
|
|
18.2.4
|
keep
the Board informed of his whereabouts (except during any periods taken as
holiday) so that he can be called upon to perform any appropriate duties
as required by the Board;
|
|
18.2.5
|
comply
with his obligations under this Agreement;
and
|
|
18.2.6
|
continue
to receive the Salary and contractual benefits (but not, for the avoidance
of doubt, any bonus) in the usual
way.
|
|
19.
|
PAYMENT
IN LIEU OF NOTICE
|
|
19.1
|
The
Company may (at the sole and absolute discretion of the Board) terminate
the Appointment at any time and with immediate effect by making the
Executive a payment in lieu of the notice period set forth in clause
17.1.3 (or, if applicable, the remainder of the notice period) and
calculated as set out below (the "Payment in Lieu of
Notice"):
|
|
19.1.1
|
In
circumstances where the Payment in Lieu of Notice is paid to the Executive
by the Company before the first anniversary of the Commencement Date (the
"First
Anniversary") it shall be calculated as an amount equal to twelve
months' Salary (at the date of termination) and shall exclude the value of
any contractual benefits or bonus which the Executive would have received
during any period of notice or
otherwise;
|
|
19.1.2
|
In
circumstances where the Payment in Lieu of Notice is paid to the Executive
by the Company on or after the First Anniversary but before the second
anniversary of the Commencement Date (the "Second Anniversary") it
shall be calculated as an amount equal to nine months' Salary (at the date
of termination) and shall exclude the value of any contractual benefits or
bonus which the Executive would have received during any period of notice
or otherwise; and
|
|
19.1.3
|
In
circumstances where the Payment in Lieu of Notice is paid by the Company
to the Executive on or after the Second Anniversary it shall be calculated
as an amount equal to six months' Salary (at the date of termination) and
shall exclude the value of any contractual benefits or bonus which the
Executive would have received during any period of notice or
otherwise.
|
|
19.2
|
The
Company shall pay any Payment in Lieu of Notice in instalments over a
period of 12 months (in the case of a payment under clause 19.1.1), nine
months (in the case of a payment under clause 19.1.2) and six months (in
the case of a payment under clause 19.1.3). Such payments will
be subject to income tax and national insurance
contributions.
|
|
19.3
|
It
shall be a condition of payment of any Payment in Lieu of Notice that the
Executive shall have previously executed an agreement in a form
satisfactory to the Company releasing the Company and each Group Company
from all claims and rights of action arising from the termination of the
Executive's employment.
|
|
20.
|
OBLIGATIONS
ON TERMINATION
|
|
20.1.1
|
Upon
whichever is the first to occur of termination of the Appointment
howsoever arising or the Company sending the Executive on Garden Leave the
Executive shall (if the Board so
requests):
|
|
20.1.2
|
immediately
resign without claim for compensation from all Offices held in any Group
Company and membership of any organisation and any Office in any other
company acquired by reason of or in connection with the Appointment and
the Executive hereby irrevocably appoints the Company to be his attorney
in his name and on his behalf to execute any documents and to do any
things necessary or requisite to give effect to this
clause;
|
|
20.1.3
|
deliver
to the Company all documents (including, but not limited to,
correspondence, lists of clients or customers, plans, drawings, accounts
and other documents of whatsoever nature and all copies thereof, whether
on paper, computer memory or otherwise) made, compiled or acquired by him
during the Appointment and relating to the business, finances or affairs
of the Company or any Group Company or its or their clients and any other
property of any Group Company which is in his possession, custody, care or
control. This clause shall not apply to any property provided
to the Executive as a benefit during any period of Garden Leave provided,
however, that such property shall be returned to the Company at the end of
the Garden Leave period. The Executive shall, if requested to
do so by the Company, confirm in writing his compliance with his
obligations under this clause;
|
|
20.1.4
|
irretrievably
delete any information relating to the business of the Company or any
Group Company stored on any magnetic or optical disc or memory and all
matter derived therefrom which is in his possession, custody, care or
control outside the premises of the Company and shall produce such
evidence of compliance with this sub-clause as the Company may
require;
|
|
21.
|
RESTRICTIONS
AFTER TERMINATION
|
|
21.1
|
The
Executive acknowledges that because of the nature of his duties and the
particular responsibilities arising as a result of such duties owed to the
Company and each Group Company he has knowledge of trade secrets and
confidential business information (including details of customers and
business associates) and is therefore in a position to harm their
legitimate business interests if he were to make use of such trade secrets
or confidential business information for his own purposes or the purposes
of another. Accordingly, having regard to the above, and having
taken independent legal advice the Executive accepts that the restrictions
in this clause are reasonable.
|
|
21.2
|
The
Executive covenants to the Company (for itself and as trustee for each
Group Company) that in order to protect the confidential information,
trade secrets and business connections of the Company and each Group
Company he shall not for the following periods after Termination for
whatever reason (but excluding repudiatory breach of this agreement by the
Company) save with the prior written consent of the Board directly or
indirectly, either alone or jointly with or on behalf of any third party
and whether on his own account or as principal, partner, shareholder,
director, employee, consultant or in any other capacity
whatsoever:
|
|
21.2.1
|
for
twelve months following Termination in the Relevant Territory and in
competition with the Company or any Relevant Group Company engage, assist
or be interested in any undertaking which provides Services (which by way
of example only shall include but not be limited to, as at the date of
this agreement, the following undertakings: LoopNet, Inc, Xceligent, Inc.;
Black's Guide; Dorey Publishing; Commercial Search; Cityfeet.com, Inc.;
Octane Ventures, Officespace.com; Marchall & Swift; Yale Robbins;
Reis, Inc; Investment Property Databank Limited; Reed Business Information
Limited; and Experian Limited;
|
|
21.2.2
|
for
twelve months following Termination and in competition with the Company or
any Relevant Group Company solicit or interfere with or endeavour to
entice away from the Company or any Relevant Group Company any Customer in
relation to the supply of Services;
|
|
21.2.3
|
for
twelve months following Termination in the Relevant Territory and in
competition with the Company or any Relevant Group Company be concerned
with the supply of Services to any
Customer;
|
|
21.2.4
|
for
twelve months following Termination and in competition with the Company or
any Relevant Group Company solicit or interfere with or endeavour to
entice away from the Company or any Relevant Group Company any Potential
Acquisition Candidate in relation to the supply of
Services;
|
|
21.2.5
|
for
twelve months following Termination solicit the employment or engagement
of or endeavour to entice away from the Company or any Relevant Group
Company any Key Employee (whether or not such person would
breach their contract of employment or engagement by reason of leaving the
service of the business in which they work);
and
|
|
21.2.6
|
at
any time following Termination represent himself as being in any way
connected with or interested in the business of the Company or any
Relevant Group Company.
|
|
21.3
|
Each
of the obligations in this clause is an entire, separate and independent
restriction on the Executive, despite the fact that they may be contained
in the same phrase and if any part is found to be invalid or unenforceable
the remainder will remain valid and
enforceable.
|
|
21.4
|
The
Executive acknowledges that each and every restriction contained within
this clause is intended by the parties to apply after Termination whether
Termination is lawful or otherwise. The restrictions, which are
acknowledged to be ancillary in nature, will apply even where Termination
results from a breach of a provision within this
agreement.
|
|
21.5
|
While
the restrictions are considered by the parties to be fair and reasonable
in the circumstances, it is agreed that if any of them should be judged to
be void or ineffective for any reason, but would be treated as valid and
effective if part of the wording was deleted, they shall apply with such
modifications as necessary to make them valid and
effective.
|
|
21.6
|
The
Executive will (at the request of the Board and cost of the Company) enter
into a direct agreement with any Group Company under which he will accept
restrictions corresponding to the restrictions contained in this clause
(or such as will be appropriate in the circumstances) in relation to such
Group Company.
|
|
21.7
|
The
provisions of this clause will not prevent the Executive from holding an
Investment.
|
|
22.
|
DEFINITIONS
|
|
(a)
|
"Customer" means any
person, firm, company or entity which was a customer of the Company or any
Relevant Group Company at any time during the 12 months prior to
Termination and with which the Executive was materially concerned or had
personal contact at any time during the said period of
12 months;
|
|
(b)
|
"Key Employee" means any
person who immediately prior to Termination was an employee or consultant
of the Company or any Relevant Group Company occupying a senior or
managerial position who was likely to
be:
|
|
(i)
|
in
possession of confidential information belonging to the Company;
or
|
|
(ii)
|
able
to influence the customer relationships or trade connections of the
Company,
|
|
(d)
|
"Relevant Group Company"
means any Group Company (and, if applicable, its predecessors in business)
for which the Executive performed services to a material degree or in
which he held office or concerning which he was in possession of
confidential information at any time during the 12 months prior to
Termination;
|
|
(e)
|
"Relevant Territory"
means geographical area constituting the market of the Company and any
Relevant Group Company for Services in the period of 12 months prior
to Termination and with which area the Executive was materially concerned
at any time during the said period of 12
months;
|
|
(f)
|
"Services" means services
which are competitive with those supplied by the Company or any Relevant
Group Company in the 12 months prior to Termination and with the supply of
which the Executive was materially concerned at any time during the said
period of 12 months; and
|
|
(g)
|
"Termination" means the
date of termination of the
Appointment.
|
|
23.
|
RECONSTRUCTION
AND AMALGAMATION
|
|
24.
|
DISCIPLINARY
AND GRIEVANCE PROCEDURES
|
|
24.1
|
Any
dismissal, disciplinary action or grievance proceedings shall be carried
out in accordance with such procedures as the Board deem
appropriate. For the avoidance of doubt, these procedures are
not intended to be contractually binding. If the Executive is
not satisfied with any disciplinary decision, decision to dismiss taken in
relation to him, or decision in respect of a grievance he may apply in
writing within 14 days of that decision to the Chairman of the Board from
time to time, whose decision shall be final. If the Executive
has any grievance in relation to his employment he may raise it in writing
with the Chairman of the Board from time to
time.
|
|
24.2
|
The
Board may at any time suspend the Executive for a period of up to twelve
weeks for the purposes of investigating any allegation of misconduct or
neglect against him and during this period he will continue to receive his
salary and all contractual benefits but will not (except with the prior
written approval of the Board) attend any premises of or contact any
employee (other than any director) or customer of the Company or any Group
Company.
|
|
25.
|
NOTICES
|
|
(a)
|
If
to the CoStar:
|
|
26.
|
ENTIRE
AGREEMENT AND PREVIOUS CONTRACTS
|
|
26.1
|
Each
party on behalf of itself and (in the case of the Company, as agent for
the Group Companies) acknowledges and agrees with the other party (the
Company acting on behalf of itself and as agent for each Group Company)
that this agreement constitutes the entire and only agreement between the
Executive and any Group Company relating to his employment with the
Company.
|
|
26.2
|
This
agreement may be varied only by a document signed by each of the parties
and expressly incorporating the terms of this agreement as varied into
that document.
|
|
26.3
|
The
Company shall discharge its obligations to make payments or provide
benefits to the Executive hereunder in the event that such payments are
made or benefits are provided to the Executive by a Group
Company.
|
|
26.4
|
Any
previous agreement or arrangement between the Company or any Group Company
and the Executive shall be deemed to have been terminated by mutual
consent as from the commencement of the Appointment and the Executive
agrees that the said termination of such subsisting agreement shall
constitute a waiver by the Executive of any claims, rights and remedies
which the Executive has or would have arising under or in connection with
any such subsisting agreements.
|
|
27.
|
PROPER
LAW
|
|
27.1
|
This
agreement (and any dispute, controversy, proceedings or claim of whatever
nature arising out of or in any way relating to this agreement or its
formation) shall be governed by and construed in accordance with English
law.
|
|
27.2
|
Each
of the parties to this agreement irrevocably agrees that the courts of
England shall have exclusive jurisdiction to hear and decide any suit,
action or proceedings, and/or to settle any disputes which may arise out
of or in connection with this agreement and, for these purposes, each
party irrevocably submits to the jurisdiction of the courts of
England.
|
|
28.
|
CONSTRUCTION
|
|
28.1
|
The
headings in this agreement are inserted for convenience only and shall not
affect its construction.
|
|
28.2
|
Any
reference to a statutory provision shall be construed as a reference to
any statutory modification or re-enactment thereof (whether before or
after the date hereof) for the time being in
force.
|
|
28.3
|
No
modification, variation or amendment to this agreement shall be effective
unless such modification, variation or amendment is in writing and has
been signed by or on behalf of both
parties.
|
|
EXECUTED
as a Deed by PROPERTY
INVESTMENT EXCHANGE LIMITED acting by
/s/
Jonathan
Bray
Director
/s/
Director/Company
Secretary
|
||
|
SIGNED
by
PAUL
MARPLES
|
)
)
)
/s/ Paul Marples
|
|
|
in
the presence of:
|
||
| /s/ Raymond Taylor | ||
|
Signature
RL
Taylor
|
||
|
Name
|
||
|
Address
|
||
|
Solicitor
|
||
|
Occupation
|