EXHIBIT 10.1


 


 


DATED    February 4, 2010


 


 


(1)  PHASE FORWARD EUROPE LIMITED


 


(2)  STEPHEN POWELL


 


 






 


SENIOR EXECUTIVE’S SERVICE AGREEMENT


 






 

















 


CONTENTS


 


	
  Clause

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  1.

  	
   

  	
  Definitions

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Employment

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Freedom to take up the
  Appointment

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Term of Employment

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Duties of the Executive

  	
  5

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
   

  	
  Hours of Work

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
   

  	
  Place of Work

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
   

  	
  Salary and Bonus

  	
  7

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
   

  	
  Expenses

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
   

  	
  Car Allowance

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
   

  	
  Pension and Life
  Assurance

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
   

  	
  Health Insurance
  Benefits

  	
  8

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
   

  	
  Holiday

  	
  9

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
   

  	
  Sickness

  	
  10

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
   

  	
  Termination of
  Employment

  	
  11

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
   

  	
  Suspension from
  Employment

  	
  13

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
   

  	
  Directorships

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  18.

  	
   

  	
  Office Communications

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  19.

  	
   

  	
  Reconstruction

  	
  14

  
	
   

  	
   

  	
   

  	
   

  
	
  20.

  	
   

  	
  Confidential
  Information

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  21.

  	
   

  	
  Post Termination
  Covenants

  	
  16

  
	
   

  	
   

  	
   

  	
   

  
	
  22.

  	
   

  	
  Inventions and
  Copyright

  	
  19

  
	
   

  	
   

  	
   

  	
   

  
	
  23.

  	
   

  	
  Misrepresentation

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  24.

  	
   

  	
  Disciplinary and
  Grievance Procedures

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  25.

  	
   

  	
  Data Protection

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  26.

  	
   

  	
  Third Party Rights

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  27.

  	
   

  	
  Previous Agreements

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  28.

  	
   

  	
  Notices

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  29.

  	
   

  	
  Law and Jurisdiction

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  30.

  	
   

  	
  General
  Provisions

  	
  22

  



 

















 


THIS
AGREEMENT is made
on


 


BETWEEN:-


 


(1)              PHASE FORWARD EUROPE LIMITED (Number 3738680 whose Registered Office
is at 1 Park Row, Leeds, West Yorkshire LS1 5AB (the “Company”);
and


 


(2)              STEPHEN POWELL of Abney Gate, Hedsor Road, Bourne End,
Bucks, SL8 5DH (the “Executive”)


 


THE PARTIES AGREE as follows:-


 


1.                DEFINITIONS


 


1.1              In this Agreement the following words and expressions shall
have the following meanings:-


 


	
  “the Act”

  	
   

  	
  means the Employment
  Rights Act 1996

  
	
   

  	
   

  	
   

  
	
  “Associated Company”

  	
   

  	
  means a company (which
  is not a Subsidiary or Holding Company of a Group Company) of which more than
  20 per cent of the Equity Share Capital is for the time being owned by a
  Group Company or which for the time being owns more than 20 per cent of the
  Equity Share Capital of a Group Company

  
	
   

  	
   

  	
   

  
	
  “Board”

  	
   

  	
  means the Board of
  Directors of the Company from time to time

  
	
   

  	
   

  	
   

  
	
  “Compensation Committee”

  	
   

  	
  means the committee of
  Phase Forward Incorporated, set up to determine executive remuneration
  throughout the Group as appointed from time to time

  
	
   

  	
   

  	
   

  
	
  “Copyright Work and Design Right Work”

  	
   

  	
  mean respectively any
  copyright work or design right work originated, conceived, written or made by
  the Executive alone or with others which relates or may relate to any
  product, service, process, equipment, system or activity of any Group Company

  
	
   

  	
   

  	
   

  
	
  “Employment”

  	
   

  	
  means the employment of
  the Executive under this Agreement or, where the context so requires, the
  duration of the employment of the Executive under this Agreement

  
	
   

  	
   

  	
   

  
	
  “Equity Share Capital”

  	
   

  	
  has the meaning given
  to it in section 744 of the Companies Act 1985

  
	
   

  	
   

  	
   

  
	
  “Executive Agreement”

  	
   

  	
  means the Executive
  Agreement of today’s date between Phase Forward Incorporated, the Company and
  the Executive

  
	
   

  	
   

  	
   

  
	
  “Group”

  	
   

  	
  means

  



 

















 


	
   

  	
   

  	
  (i)

  	
  the Company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (ii)

  	
  any Holding Company for
  the time being of the Company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iii)

  	
  any Subsidiary for the
  time being of the Company or of the Company’s Holding Company

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (iv)

  	
  any Associated Company

  
	
   

  	
   

  	
   

  
	
  “Group Company”

  	
   

  	
  means the Company and
  any other member of the Group from time to time

  
	
   

  	
   

  	
   

  
	
  “Holding Company” and “Subsidiary” 

  	
   

  	
  have the meanings given
  to them respectively in section 736 of the Companies Act 1985

  
	
   

  	
   

  	
   

  
	
  “Invention”

  	
   

  	
  means any invention,
  discovery or improvement including (without limitation) any know how, design,
  process, drawing, formula, computer programme or specification which relates
  or may relate to any product, service, process, equipment, system or activity
  of any Group Company whether or not now, or at any future time, capable of
  being the subject of a United Kingdom or any other patent

  
	
   

  	
   

  	
   

  
	
  “Involuntary Termination upon a Change in Control”

  	
   

  	
  has the meaning
  provided for within the Executive Agreement

  
	
   

  	
   

  	
   

  
	
  “Minority Holder”

  	
   

  	
  means a person who,
  whether solely or jointly, holds or is beneficially interested in the shares
  or securities of any company quoted on any Recognised Investment Exchange
  provided that such holding or interest does not exceed 1 per cent of any
  single class of such shares or securities. 
  In calculating whether a person is a Minority Holder there shall be
  aggregated with any shares or securities held by him or to which he is
  beneficially entitled any shares or securities of the same class which his
  spouse or any child of his under the age of 18 years holds or is beneficially
  entitled to

  
	
   

  	
   

  	
   

  
	
  “Person”

  	
   

  	
  includes any natural or
  legal person and any unincorporated firm, undertaking or similar body

  
	
   

  	
   

  	
   

  
	
  “Qualifying Shares”

  	
   

  	
  any shares required to
  be held in accordance with the articles of association of the Company and/or
  any other Group Company by virtue of the Executive being a director of the
  Company or any Group Company or at the request of the Company or any Group
  Company excluding, for the avoidance of doubt, any shares awarded to or
  provided to or purchased by the Executive under any share purchase or share
  option scheme

  
	
   

  	
   

  	
   

  
	
  “Recognised Investment Exchange”

  	
   

  	
  has the meaning given
  to it in section 285 of the 

  



 

















 


	
   

  	
   

  	
  Financial Services and
  Markets Act 2000

  
	
   

  	
   

  	
   

  
	
  “Resignation for Good Reason upon a Change in Control”

  	
   

  	
  has the meaning
  provided for within the Executive Agreement

  
	
   

  	
   

  	
   

  
	
  “Termination
  without Cause”

  	
   

  	
  has the meaning
  provided for within the Executive Agreement

  



 


1.2              The headings in this Agreement are for convenience only and
shall not affect its interpretation or construction.


 


1.3              A reference to any statutory or legislative provision
includes a reference to that provision as modified, replaced, amended and/or
re-enacted from time to time.


 


1.4              Any reference to the Executive shall, if appropriate,
include his personal representatives.


 


1.5              Words importing one gender include the other gender.


 


1.6              Any reference in this Agreement to a clause or sub-clause is
to the relevant clause or sub-clause of this Agreement.


 


1.7              Nothing in this Agreement shall be taken to prevent the
Executive from making a protected disclosure in accordance with the Public
Interest Disclosure Act 1998.


 


2.                EMPLOYMENT


 


The Company
shall employ the Executive and the Executive agrees to act as Senior Vice
President, Sales and Marketing.


 


3.                FREEDOM TO TAKE UP THE
APPOINTMENT


 


The Executive
warrants that by virtue of entering into or performing any of his duties under
this Agreement or any other agreement made or to be made between a Group
Company and the Executive he will not be in breach of any express or implied
terms of any contract or of any other obligation binding upon him and he will
indemnify the Company and any other Group Company against any costs, claims,
liabilities and expenses (including legal expenses on an indemnity basis)
arising out of any such breach or alleged breach by him.


 


4.                TERM OF EMPLOYMENT


 


4.1              The Employment began on 1 April 2002 and no
previous employment of the Executive shall count as part of the Executive’s
continuous period of employment for the purposes of the Act.


 


4.2              Subject to Clause 15 (Termination of Employment) and
the Executive Agreement the Employment shall be subject to termination by
either party giving to the other six months prior notice in writing.


 


4.3              Payment in Lieu of Notice


 


The Company
may except in the circumstances of a Termination without Cause, Involuntary
Termination upon a Change in Control or Resignation for Good Reason upon a
Change in Control, in each case where the Executive Agreement shall soley apply
in relation to the Executive’s entitlement to notice and to payment on
termination and shall entirely supersede this Agreement, at any time in its
absolute discretion terminate the Employment forthwith by paying to the
Executive, in lieu of the 


 

















 


notice period
referred to in Clause 4.2 (term of employment) or Clause 15.4.1
(termination on account of illness or injury) or any unexpired portion thereof,
an amount equivalent to the Executive’s basic salary and benefits due under
clauses 10, 11 and 12 of this Agreement for such period or part period
excluding any unearned commissions or bonus. 
Such a payment shall be subject to such deductions for tax and national insurance
as are required by law and to any other authorised deductions.


 


4.4              Garden Leave


 


Without
prejudice to the provisions of Clauses 4.3 (payment in lieu of notice)
and 15.2 (summary dismissal), the Company may, once notice of termination
has been given by either side require the Executive to cease performing his job
for such period or periods of the notice period as the Company shall in its
absolute discretion determine.  During
any such period of garden leave:-


 


4.4.1           the Company shall continue to pay the Executive’s salary and
shall provide all benefits to which he is entitled under this Agreement;


 


4.4.2           without prejudice to the Company’s rights under
Clause 5.3 (performance of alternative duties) the Company shall be under
no obligation to provide any work for the Executive and shall be entitled to
appoint any other person or persons to perform the Executive’s duties under
this Agreement whether on a temporary or a permanent basis;


 


4.4.3           the Company may forbid the Executive to enter any Group premises
or to contact any employees, officers, customers, clients, agents or suppliers
of the Group without its prior consent;


 


4.4.4           the Executive shall, at the request of the Board,
immediately deliver to the Company all or any property in his possession or
control which belongs to the Company or which relates to the business of the
Company, including without limitation, all items mentioned in
Clauses 15.6.1 and 15.6.2;


 


4.4.5           the Executive shall, at the written request of the Board,


 


(a)        immediately resign (without claim for compensation) from all
and any directorships and other offices which he may hold in any Group Company
and from any other offices which he holds as nominee or representative of any
Group Company; and


 


(b)        transfer without payment as the Company may direct, any
Qualifying Shares held by the Executive in accordance with the articles of
association of the Company and/or any other Group Company


 


and in the event of his
failure to do so within 7 days of the said request the Executive hereby
irrevocably authorises any director of the Company for the time being in his
name and on his behalf to execute any documents or do anything else that is
necessary to effect such resignations and transfers; and


 


4.4.6           for the avoidance of doubt the Executive shall continue to
be bound by all the Executive’s obligations under this Agreement insofar as
they are compatible with the Executive being on garden leave including, without
limit, the Executive’s duty of good faith and the Executive’s duties under
Clause 5.5 (Executive not to be employed in any other business).


 


5.                DUTIES OF THE EXECUTIVE


 


5.1              The Executive shall, in his capacity as Senior Vice
President, Sales and Marketing, be responsible to the Board for the sales and
marketing strategy and activities of the Company.


 

















 


5.2              The Executive may be required by the Board for any period
covered by this Agreement and without being entitled to further remuneration to
act as an officer of any Group Company or hold any other appointment or office
as nominee or representative of any Group Company.


 


5.3              The Executive accepts that the Company may at its reasonable
discretion require him to perform other, alternative or different duties or
tasks commensurate with his status but not within the scope of his normal
duties and the Executive agrees to perform those duties or undertake those
tasks as if they were specifically required under this Agreement.


 


5.4              During the Employment the Executive shall at all times:-


 


5.4.1           use his best endeavours to promote the interests and
reputation of the Group giving at all times the full benefit of his knowledge,
expertise and skill;


 


5.4.2           faithfully and diligently and to the best of his ability
exercise such powers and perform such duties in relation to the Group’s
business as the Board may from time to time require;


 


5.4.3           keep the Board promptly and fully informed (in writing if so
required by the Board) of his conduct of the business of the Group and provide
the Board with all information regarding the affairs of the Group and his conduct
in relation thereto as it shall require;


 


5.4.4           conform to the instructions or directions of the Board and
implement and apply the policy of the Company as determined by the Board from
time to time; and


 


5.4.5           refrain from making any false or misleading statements about
the Group.


 


5.5              The Executive shall not, save where there is no conflict of
interest with the business of the Company and provided always that by doing so
the Executive is not prevented from devoting his whole working time and attention
to the Company, during the Employment be directly or indirectly employed
engaged concerned or interested, whether as a director, employee,
sub-contractor, partner, consultant, proprietor, agent or otherwise, in any
other business, undertaking or occupation or the setting up of any other
business undertaking or occupation, or accept any other engagement or public
office but the Executive may nevertheless be or become a Minority Holder.


 


5.6              The Executive shall not during or after the Employment
knowingly or willingly do or cause or permit to be done anything which is
calculated or may tend to prejudice or injure the interests of the Group and if
during the Employment the Executive shall learn of any act or omission by any
other person whether or not employed by the Group which is calculated or may
tend to prejudice or injure the interests of the Group he shall promptly report
it to the Board giving all necessary particulars.


 


5.7              The Executive shall comply with all applicable laws,
regulations, rules and codes of conduct including without limitation the
Model Code on Transactions in Securities by Directors and Relevant Employees
issued by the United Kingdom Listing Authority, the City Code on Takeovers and
Mergers and the Code of Market Conduct issued by the Financial Services
Authority together with any policy of the Company from time to time in force in
relation to:-


 


5.7.1           dealings in shares, debentures or other securities of the
Company or any other Group Company;


 


5.7.2           any unpublished price sensitive information affecting the
securities of any other company; and


 


5.7.3           any form of market abuse as defined by the Financial
Services and Markets Act 2000.


 

















 


6.                HOURS OF WORK


 


6.1              The Executive shall devote the whole of his working time and
attention to the service of the Group except during holidays and any periods of
absence due to illness or injury.


 


6.2              The normal business hours of the Company are 9.00 am to
5.30 pm Monday to Friday inclusive with a daily lunch break of
60 minutes and shall apply to the Executive provided that the Executive
shall be obliged to work such further hours as may be necessary for the proper
discharge of his duties and shall not be entitled to receive any additional
remuneration for work outside normal business hours.


 


6.3              The Executive acknowledges that the limit in
Regulation 4(1) of The Working Time Regulations 1998 shall not
apply to him and accordingly agrees that his working time (including overtime)
may exceed an average of 48 hours for each 7 day period in the
applicable reference period whenever necessary for the proper discharge of his
duties or in any event as may be required by the Company.  The Executive shall be entitled to withdraw
such agreement by giving 3 months prior written notice to the Company.


 


6.4              In this Agreement “Working Time”
has the meaning given to it in Regulation 2 of the Working Time
Regulations 1998.


 


7.                PLACE OF WORK


 


7.1              The Executive is required, in pursuant of his duties under
this Agreement to work within 25 miles of the current International Headquarters
in Maidenhead, Berkshire or as required in Central London.


 


7.2              For the purpose of performing his duties, the Executive
shall undertake such journeys in the United Kingdom and elsewhere (including
the United States and Asia) as may be required to fulfil the Executive’s duties
or as the Board shall otherwise require. 
Travelling and other expenses shall be reimbursed in accordance with
Clause 9.


 


8.                SALARY AND BONUS


 


8.1              During the Employment the Company shall pay to the
Executive:-


 


8.1.1           a basic salary at the rate of £185,000 for 2010 per year
which shall accrue from day to day and be payable by equal monthly instalments
in arrears on or about the 28th day of each month; and


 


8.1.2           commission and a bonus calculated and payable in accordance
with the rules of the Company’s compensation plan as communicated to the
Executive on an annual basis.


 


and such
payments shall be deemed to include any fees or other remuneration receivable
by the Executive as a Director of any Group Company.


 


8.2              The Executive’s compensation plan including basic salary,
bonus and commission shall be reviewed by the Compensation Committee in January each
year.  For the avoidance of doubt it is
agreed that the Executive shall have no contractual right to any increase in
his basic salary under this Clause.


 


8.3              For the purposes of sections 13 to 16 of the Act,
the Executive hereby consents to the deduction from his salary and bonus (or
from any other sum due from the Company to the Executive which falls within the
definition of “Wages” in section 27 of the
Act) of any sums owing by the Executive to the Company or to any other Group
Company at any time and he also agrees to make payment to any Group Company of
any sums owed by him to any Group Company upon demand by the Company at any
time.  This sub-clause is without
prejudice to the right of any Group Company to recover any sums or balance of
sums owed by the Executive to any such Group Company by legal proceedings.


 

















 


9.                EXPENSES


 


9.1              The Company shall, subject to Clause 9.2, repay to the
Executive all travelling, hotel, entertainment and incidental expenses
excluding any car parking or road traffic offence fines reasonably incurred by
him in the proper performance of his duties.


 


9.2              The Executive shall provide all such receipts, vouchers and
evidence of expenses claimed by him as shall be required by the Company or its
Auditors.


 


9.3              If the Company provides the Executive with any credit or
charge card the Executive shall use such card solely for those expenses
referred to in Clause 9 and he shall immediately return any such card to
the Company whenever so required by the Board, and in any event in accordance
with the provisions of Clause 4.4.4 (garden leave), Clause 15.6.2
(termination of employment) and Clause 16.3 (suspension from employment)
where applicable.


 


10.              CAR ALLOWANCE


 


10.1            During the Employment the Company shall pay to the Executive
a car allowance of £1,250 per month which shall accrue from day to day and
shall be payable on or about the 28th of each month.  This amount shall be reviewed annually but
for the avoidance of doubt it is agreed that the Executive shall have no
contractual right to any increase under this Clause.


 


11.              PENSION AND LIFE ASSURANCE


 


11.1            The Executive will be permitted to have 15% of his basic
salary paid into a Pension vehicle of his choosing.


 


11.2            The Company maintains a life assurance scheme (the “Life Assurance Scheme”) and the Executive shall be entitled
to become and remain throughout the Employment a member of the Life Assurance
Scheme, subject to the rules of the Life Assurance Scheme from time to
time in force, details of which will be provided to the Executive on request by
the Company Secretary.  The Life
Assurance Scheme will provide benefits at 4x basic salary plus the value of benefits
under clauses 10 to 12 of this Agreement. 
The Company shall be entitled at any time to withdraw or amend any of
the rules or benefits of the Life Assurance Scheme and/or to terminate the
Executive’s participation in the Life Assurance Scheme provided that if the
Company does so it will enable the Executive to become a member of a comparable
scheme providing comparable benefits subject to the terms of the scheme.


 


12.              HEALTH INSURANCE BENEFITS


 


12.1            During the Employment the Executive shall be entitled to
participate at the Company’s expense:-


 


12.1.1         in the Company’s permanent health insurance scheme (the “PHI Scheme”); and


 


12.1.2         for himself, his spouse and his dependant children in the
Company’s private medical expenses insurance scheme (together “the Schemes”)


 


subject
always to the rules of the Schemes for the time being in force (details of
which are available on request from the Company Secretary) and to the approval
of the relevant insurer.


 


12.2            Notwithstanding Clause 12.1, the Company shall be
entitled at any time:-


 


12.2.1         to terminate either or both of the Schemes; and/or


 


12.2.2         to withdraw or amend any of the rules or benefits of
either or both of the Schemes including the rules referred to in
Clause 12.4


 

















 


and subject
to Clause 12.3 any such changes shall take effect as between the Company
and the Executive upon the Executive receiving written notice of the same from
the Company, such notice to be signed by a director (other than the Executive)
or some other duly authorised officer or agent of the Company and served on the
Executive in person or delivered by hand or first class, recorded delivery post
to his last known private address in the United Kingdom in accordance with
Clause 28.  Provided always that if
the Company does so it will enable the Executive to become a member of
comparable schemes providing comparable benefits subject to the terms of the
schemes.


 


12.3            Where the Executive is notified of any changes in accordance
with Clause 12.2, any entitlement to benefit which has already accrued to
him at the time of the change will be dealt with in accordance with the rules of
the relevant scheme immediately prior to the change provided that thereafter
the Executive’s entitlement under the Schemes (if any) shall be subject to any
changes which have been duly notified to him in accordance with
Clause 12.2.


 


12.4            The Executive’s entitlement under the PHI Scheme will cease
in accordance with rules of the PHI Scheme.


 


12.5            The Executive will arrange at the Company’s expense up to a
contribution of £250 per annum for the Executive to have an annual health
assessment.


 


13.              HOLIDAY


 


13.1            The Executive is entitled to 30 working days paid holiday in
each holiday year in addition to such bank and other public holidays as are
observed by the Company in accordance with the Company’s holiday policy.  The holiday year runs from 1 January to
31 December and holiday entitlement is to be taken at such times and on
such notice as is agreed by the Managing Director.


 


13.2            The Executive shall be entitled to carry forward any unused
part of his holiday entitlement to a subsequent holiday year subject to the
limits set out in the Company’s Holiday Policy.


 


13.3            Where the Employment starts or terminates during a holiday
year the Executive will be entitled in that year to such proportion of his
annual holiday entitlement as equals the proportion of time he is employed
under this Agreement in that year, rounded to the nearest half day.


 


13.4            The Executive shall not be entitled to payment in lieu of
any unused part of his holiday entitlement, except on termination of the
Employment in accordance with Clause 13.5.


 


13.5            On termination of the Employment:-


 


13.5.1         the Executive shall be entitled to be paid in lieu of any
outstanding holiday entitlement or, as the case may be, shall be obliged to
repay to the Company salary in respect of holiday take in excess of his
entitlement in his final holiday year and subject to Clause 13.5.2 the
basis for calculation in either case shall be 1/250 of the Executive’s
annual basic salary for each day; and


 


13.5.2         where the Executive has been summarily dismissed in
accordance with Clause 15.2 or where the Executive terminates the
Employment in breach of the notice provisions in Clause 4.2, the
calculation of any sum owed by the Executive in respect of excess holiday
entitlement shall be carried out in accordance with Clause 13.5.1, but the
amount of any payment in lieu of outstanding holiday entitlement owed by the
Company shall be calculated as being £1.


 


13.6            For the avoidance of doubt Regulations 15(1) to 15(4) of
the Working Time Regulations 1998 (the “Regulations”)
do not apply to the Employment; and


 
















 


14.              SICKNESS


 


14.1            If the Executive is absent from work due to illness or
injury he will notify the Company Secretary as soon as possible and, if
practicable, on the first working day of incapacity.  The Executive shall complete any self-certification
forms which are required by the Company immediately upon his return to work
and, if his incapacity continues for more than 7 consecutive days (whether
working days or not) shall produce medical certificates to cover the duration
of his absence from work.  Provided the
requirements of this Clause 14.1 are satisfied, the Executive’s absence
will be regarded as authorised.


 


14.2            Without prejudice to Clause 15 (termination of
employment) and Clause 4.3 (payment in lieu of notice) the Executive shall
continue to receive the normal remuneration including any bonus and other
contractual benefits due to him under this Agreement during any authorised
period or periods of absence due to illness or injury up to a maximum of
26 consecutive weeks.  Thereafter he
shall receive such benefits (if any) as may be available to him under the
Company’s permanent health insurance scheme. 
All remuneration payable under this Clause 14.2 shall be inclusive
of any statutory sick pay or social security or other benefits to which the
Executive is entitled (whether or not such benefits are actually recovered).


 


14.3            For statutory sick pay purposes the Executive’s qualifying
days shall be his normal working days.


 


14.4            The Executive may at the Company’s expense be required
during the course of the Employment to attend a medical practitioner or clinic
nominated by the Company for the purpose of a medical examination to help
determine his fitness for continued Employment and he shall undergo any tests
and examinations reasonably required by the said medical practitioner or clinic
and shall co-operate in ensuring the prompt delivery of any resulting report to
the Company.  Such an examination may
include or consist of tests for alcohol or drugs (including “controlled drugs” as defined by the Misuse of Drugs
Act 1971) where the Company has reason to believe that the use of alcohol
or drugs is adversely affecting the Executive’s performance at work or is
posing a risk to health and safety. 
Notwithstanding the provisions of the Access to Medical Reports
Act 1988 the Executive hereby consents to the Company obtaining any
medical report relating to his physical or mental health prepared by a medical
practitioner who is or has been responsible for the clinical care of the
Executive.


 


14.5            Third Party Injury to Executive


 


14.5.1         If the Executive is absent from work by reason of any
illness or injury caused wholly or partly by any act or omission of any third
party in relation to which the Executive may be or become entitled to recover
damages or compensation, then all net payments made to the Executive under this
Clause 14 in respect of the said absence shall be repaid by the Executive
if and to the extent that he recovers damages or compensation for loss of
earnings from the said third party and/or from the Criminal Injuries
Compensation Board or the Motor Insurers’ Bureau or any other similar body (the
“Relevant Bodies”) by action or
otherwise.


 


14.5.2         Where the Executive receives any damages or compensation for
loss of earnings as referred to in Clause 14.5.1, he shall notify the
Company in writing forthwith and shall repay the amount due to the Company
under this Clause within 28 days of receipt of the said damages or
compensation.


 


14.5.3         For the avoidance of doubt, where the Executive receives
damages or compensation from a third party and/or the Relevant Bodies in the
circumstances referred to in Clause 14.5.1, and that compensation includes
an unspecified sum for loss of earnings, then the amount owing to the Company
under Clause 14.5.1 will be such sum as is reasonable in all the
circumstances.


 

















 


14.6            The Company shall be entitled during any period during which
the Executive is absent due to illness or injury in excess of three months to
appoint a further executive to perform the duties and exercise the powers of
the Executive in his place on such terms and conditions as the Company shall
see fit.


 


14.7            For the avoidance of doubt the term “illness or
injury” as used in this Clause 14 includes any mental or
psychiatric illness and any injury, whether or not this has been sustained in
the course of the Executive’s duties.


 


15.              TERMINATION OF EMPLOYMENT


 


15.1            General


 


15.1.1         The parties shall be entitled to terminate this Agreement by
giving notice in accordance with the terms of Clause 4.2 although the Employment
shall come to an end automatically without the need for either party to give
notice to the other when the Executive reaches the age of 60.


 


15.1.2         For the avoidance of doubt, where there are no circumstances
justifying summary dismissal under Clause 15.2, the methods by which the
Company may terminate the Employment are not restricted to the giving of notice
in accordance with Clauses 4.2 (term of employment) or 15.4.1 (termination
on account of illness or injury) or to the making of a payment in lieu of
notice under Clause 4.3 (payment in lieu of notice) or to the
circumstances set out within the Executive Agreement and accordingly if the
Company terminates the Employment without giving notice or without making a
payment in lieu of notice then any damages to which the Executive may be
entitled shall be calculated in accordance with ordinary common law principles
including those relating to mitigation of loss and accelerated receipt.


 


15.2            Summary Dismissal


 


Notwithstanding the provisions of Clauses 4.2 (notice
clause), 4.3 (payment in lieu of notice) and 15.4 (termination on
account of illness) the Company may by written notice to the Executive
forthwith terminate the Employment (without being under any obligation to pay
any further sums to the Executive whether by way of compensation, damages or
otherwise in respect of or in lieu of any notice period or unexpired term of
this Agreement, and without prejudice to any other rights of the Company) if
the Executive:-


 


15.2.1         materially fails or persistently neglects efficiently and
diligently to carry out his duties to the reasonable satisfaction of the Board;


 


15.2.2         is guilty of any material or persistent breach or
non-observance of any of the provisions of this Agreement;


 


15.2.3         is guilty of gross misconduct or any other conduct which, in
the opinion of the Board is calculated or likely to affect prejudicially the
interests of the Group whether or not such misconduct or other conduct occurs
during or in the context of the Employment;


 


15.2.4         without the express written consent of the Board resigns or
ceases to hold office as a director of the Company or of any other Group
Company of which he had been appointed a director or is disqualified from
holding or ceases to be qualified to hold office as a director by any court
order, any provisions in the articles of the Company or any other Group Company
or under any provision of general law from time to time save where this arises
by reason of him not being re-elected as a director of the Company at any annual
general meeting of the Company at which under the articles of association he is
to retire by rotation;


 

















 


15.2.5         is convicted of any criminal offence (excluding an offence
under road traffic legislation in the United Kingdom and elsewhere for which a
penalty of imprisonment cannot be imposed);


 


15.2.6         is made the subject of a bankruptcy order or have a
receiving order or an administration order made against him or make any
composition or arrangement with his creditors generally or otherwise take
advantage of any statute from time to time in force offering relief for
insolvent debtors;


 


15.2.7         becomes addicted to or is habitually under the influence of
alcohol or any drug (not being a drug prescribed for the Executive by a medical
practitioner for the treatment of a condition other than drug addiction) the
possession of which is controlled by law;


 


15.2.8         is expelled, suspended or subject to any serious
disciplinary action by any relevant professional or other body as a result of
which he is no longer able to perform his duties under this Agreement; or


 


15.2.9         becomes a patient within the meaning or the Mental Health
Act 1983.


 


15.3            In the event that any part of the share capital of the
Company shall be quoted on any Recognised Investment Exchange it shall be a
fundamental term of this Agreement that the Executive shall comply at all times
with the Model Code for transactions in securities by directors and relevant
employees issued from time to time by the Financial Services Authority as the
United Kingdom Listing Authority (the “Model Code”)
and it shall be the responsibility of the Executive to make himself aware of
the provisions of the Model Code and the parties agree that (without prejudice
to the effect of any other conduct of the Executive) any breach by the
Executive of the Model Code shall be gross misconduct for the purpose of
Clause 15.2.3.


 


15.4            Termination on Account of Illness or Injury


 


15.4.1         Without prejudice to Clauses 15.2  (summary
dismissal) and 4.3 (payment in lieu of notice) and subject to
Clause 15.4.2 (restrictions on dismissals in context of PHI scheme), but
notwithstanding any other provision of this Agreement, if the Executive shall
become unable to perform his duties properly by reason of illness or injury for
a period or periods aggregating at least 180 days in any period of
12 consecutive calendar months (the “Period or Periods of
Incapacity”) then the Company may, by not less than three months
prior written notice to the Executive, terminate the Employment.


 


15.4.2         Where the Executive is receiving benefits under the PHI
Scheme (the “PHI Benefits”) or where his
absence due to illness or injury may entitle him to PHI Benefits in the future,
the Company shall not terminate the Employment for any reason where to do so
would render the Executive ineligible for PHI Benefits or eligible for a
reduced rate of PHI Benefits PROVIDED THAT nothing in this sub-clause shall
prevent the Company from:-


 


(a)        terminating the Employment pursuant to Clause 15.2  (summary dismissal); or


 


(b)        terminating the Employment under Clause 15.1.1  by reason of redundancy; or


 


(c)        terminating the Employment forthwith where the Executive
ceases to receive PHI Benefits and in such circumstances the Executive agrees
that the Company would be acting reasonably in so terminating the Employment


 


and for the avoidance of
doubt it is agreed that whilst the Executive is absent from work and receiving
PHI Benefits the fact that the Employment continues by virtue of this
sub-clause shall not entitle the Executive to payment of his salary or to any
other benefits under this Agreement.


 

















 


15.5            Miscellaneous


 


On the termination of this Agreement for whatever reason,
the Executive shall at the written request of the Board:-


 


15.5.1         immediately resign (without claim for compensation) from all
and any directorships and other offices which he may hold in any Group Company
and from any other appointments or offices which he holds as nominee or
representative or any Group Company; and


 


15.5.2         transfer without payment as the Company may direct, any
Qualifying Shares held by the Executive in accordance with the articles of
association of the Company and/or any other Group Company


 


and if he should fail to do so within 7 days of the
said request the Executive hereby irrevocably authorises any director of the
Company for the time being in his name and on his behalf to execute any
documents or do anything else that is necessary to effect such resignations
and/or transfers.


 


15.6            Upon termination of the Employment for whatever reason the
Executive shall forthwith deliver to the Company or its authorised
representative such of the following as are in his possession or control:-


 


15.6.1         all keys, security and computer passes, plans, statistics,
documents, records, papers, magnetic disks, tapes or other software storage
media including any copies thereof which belong to the Group or which relate to
the business of the Group including all copies, records and memoranda (whether
or not recorded in writing or on computer disk or tape) made by the Executive
of any Confidential Information (as defined by Clause 20.5);


 


15.6.2         all credit cards and charge cards provided for the Executive’s
use by the Company; and


 


15.6.3         all other property of the Group not previously referred to
in this Clause.


 


16.              SUSPENSION FROM EMPLOYMENT


 


In order to investigate a complaint of misconduct made
against the Executive the Company shall be entitled to suspend the Executive
from his duties on full pay with full entitlement to all other benefits to
which he is entitled under this Agreement for so long as the Board shall
consider necessary in order to facilitate a proper investigation of such
complaint and during such period of suspension:-


 


16.1            without prejudice to Clause 5 (duties of
the Executive) the Company shall be under no obligation to provide any work for
the Executive and shall be entitled to appoint any other person or persons to
perform the Executive’s duties under this Agreement whether on a temporary or a
permanent basis;


 


16.2            the Company may forbid the Executive to enter
any Group premises or to contact any employees, officers, customers, clients,
agents or suppliers of the Group without its prior consent;


 


16.3            the Executive shall, at the request of the
Board, immediately deliver to the Company all or any property in his possession
or control which belongs to the Company or which relates to the business of the
Company, including without limitation all items mentioned in
Clauses 15.6.1 and 15.6.2; and


 


16.4            the Executive shall continue to be bound by all
the Executive’s obligations under this Agreement insofar as they are compatible
with the Executive being suspended from duties, including without limit the
Executive’s duty of good faith and the Executive’s duties under Clause 5.5
(Executive not to be employed in any other business).


 

















 


17.              DIRECTORSHIPS


 


17.1            If during the Employment the Executive shall cease to be a
director of the Company or any other Group Company (otherwise than for a reason
justifying summary dismissal pursuant to Clause 15.2.4) the Employment shall
continue as if he had been employed as an Executive Manager with the same
status as previously save that the Executive shall not present himself as a
Director of the Company and the terms of this Agreement (save those relating to
the holding of the office of director) shall continue in full force and effect.


 


18.              OFFICE COMMUNICATIONS


 


18.1            During the Employment the Executive will have access to the
Company’s telecoms and computer system (the “Office
System”) which provides for communication by various means including
telephone, fax, e-mail, voice mail and video conferencing link and which also
allows access to the internet.  The
Office System (which includes without limitation any mobile telephone or laptop
computer provided by the Company to the Executive) is intended primarily for
business use and must be operated and used strictly in accordance with Company
policy including, where relevant, the Company’s IT Policy as varied from time
to time.  Breach of any such policy will
normally be treated as a serious disciplinary matter.


 


18.2            The Company may, at any time during the Employment, where
this is necessary in the interests of the Company’s business, monitor the
Executive’s use of the Office System (whenever this occurs).  This power includes, without limitation, the
ability to monitor:-


 


18.2.1         the timing, duration and contents of any communication
whatsoever sent by or to the Executive via the Office System; and


 


18.2.2         the Executive’s access to and use of the internet


 


and the Executive consents to such monitoring taking place.


 


18.3            The Executive must not send any e-mails or other messages on
the Office System which are of a defamatory or abusive nature, which constitute
sexual or any other form of harassment or which are calculated to or may tend
to prejudice or injure the interests of the Group.  In addition he is prohibited from accessing
or downloading any pornographic or other offensive material on the Office
System.  The Executive agrees to
indemnify the Company during and after the termination of the Employment
against all liabilities arising from the Executive’s breach of this provision.


 


18.4            This Clause is without prejudice to the Executive’s
obligations under Clause 25 (data protection).


 


19.              RECONSTRUCTION


 


If the Employment of the Executive is terminated by reason
of the liquidation, reorganisation, or other reconstruction of the Company or
any other Group Company or as part of any other rearrangement of the affairs of
the Company or any other Group Company not involving a liquidation, and the
Executive is offered Employment by a reconstructed Company or by another Group
Company on substantially similar terms (for the avoidance of doubt the
Executive’s basic salary and contractual benefits shall be no less than those
due under this Agreement and the bonus opportunity for the Executive shall be
on substantially similar terms) and comparable status then, subject to the
provisions of the Transfer of Undertakings (Protection of Employment)
Regulations 1981, the Executive shall be obliged to accept such offer and
shall have no claim against the Company or any reconstructed or Group Company
in respect of the termination of the Employment.


 

















 


20.              CONFIDENTIAL INFORMATION


 


20.1            The Executive Director is aware that in the course of
Employment under this Agreement he will have access to and be entrusted with
information in respect of the business and finances of the Company and its
dealings, transactions and affairs and likewise in relation to any other Group
Company all of which information is or may be Confidential Information.  Accordingly the Executive gives the
undertakings set out in this Clause 20 to the Company for itself and for
the benefit of and as trustee for any Group Company.


 


20.2            The Executive shall not during the Employment or afterwards use
exploit (except for the benefit of the Group) or divulge to any third party by
any means any Confidential Information except he shall be permitted to do so:-


 


20.2.1         when necessary in the proper performance of the duties of
his Employment;


 


20.2.2         with the express written consent of the Board; or


 


20.2.3         where this is required by law.


 


20.3            The Executive shall, during the Employment, use his best
endeavours to prevent the unauthorised use or disclosure of any Confidential
Information whether by any other officer, employee or agent of the Group or
otherwise and shall be under an obligation promptly and freely to report to the
Board any such unauthorised use or disclosure which comes to his knowledge.


 


20.4            The Executive shall not, during the Employment or at any
time thereafter make, except for the benefit of the Company or any other Group
Company any copy, record, or memorandum (whether recorded in writing, on
computer disk or tape or otherwise) of any Confidential Information and any
such copy record or memorandum made by the Executive during the Employment
shall be and remain the property of the Company and accordingly shall be
returned by the Executive to the Company on termination of the Employment in
accordance with Clause 15.6 or when required to do so by the Board
pursuant to Clause 4.4.4 (garden leave) or Clause 16.3 (suspension
from employment) or at any other time during the Employment at the request of
the Board.


 


20.5            In this Agreement “Confidential Information”
means:-


 


20.5.1         all information which relates to the business, finances,
transactions, affairs, products, services, processes, equipment or activities
of the Company and any other Group Company which is designated by the Company
and any other Group Company as confidential; and


 


20.5.2         all information relating to such matters which comes to the
knowledge of the Executive in the course of the Employment and which, by reason
of its character and/or the manner of its coming to his knowledge, is evidently
confidential


 


and shall include without limitation information as to
processes, formulas, data, computer programs, software and documentation,
know-how, improvements, discoveries, developments, designs, algorithms,
inventions, techniques, strategies, new products, marketing plans, strategic and
business plans, forecasts, unpublished financial statements, business forms,
contract forms, report formats, budgets, projections, licenses, prices, costs,
customer, client and supplier lists, employee lists and employee information,
and any other information of a similar nature not available to the public,
whether oral or written, in drawings or in machine-readable form, and whether
or not expressly marked “Confidential” or “Proprietary”, provided that
information shall not be, or shall cease to be, Confidential Information if and
to the extent that it comes to be in the public domain otherwise than as a
result of the unauthorised act or default of the Executive.


 


20.6            This Clause is without prejudice to the Executive’s
obligations under Clause 25 (data protection).


 
















 


21.              POST TERMINATION COVENANTS


 


21.1            For the purposes of this Clause the following words and
expressions shall have the following meanings:-


 


	
  21.1.1

  	
   

  	
  “Business”

  	
   

  	
  (i) any business
  relating to computer software used in the management of and data collection for
  clinical trials of pharmaceutical products and/or safety reporting software
  (ii) any other business in which the Company or any Group Company is
  engaged on the Termination Date and in or with which the Executive has been
  involved or concerned during the period of 12 months prior to the Termination
  Date and (iii) any other business in which the Company or any Group
  Company is actively planning to become engaged on the Termination Date and in
  connection with the planning of which the Executive has had significant
  involvement or had access to Confidential Information during the period of 12
  months prior to the Termination Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.1.2

  	
   

  	
  “directly
  or indirectly”

  	
   

  	
  the Executive acting
  either alone or jointly with or on behalf of any other person, firm or
  company, whether as principal, partner, manager, employee, contractor,
  director, consultant, investor or otherwise

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.1.3

  	
   

  	
  “Key
  Personnel”

  	
   

  	
  any person who is at
  the Termination Date or was at any time during the period of 6 months prior
  to the Termination Date employed or engaged as a consultant in the Business
  in an executive or senior managerial capacity and with whom the Executive has
  had dealings other than in a de minimis way during the course of the
  Employment

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.1.4

  	
   

  	
  “Prospective
  Client”

  	
   

  	
  any person, firm or
  company which has been engaged in negotiations, with which the Executive has
  been personally involved, with the Company or any other Group Company with a
  view to purchasing goods and services from the Company or any other Group
  Company during the period of 6 months prior to the Termination Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.1.5

  	
   

  	
  “Relevant
  Area”

  	
   

  	
  the United Kingdom and
  any other geographic area in which the Company or any Group Company carries
  on business or has carried on business within the period of 12 months prior
  to the Termination Date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.1.6

  	
   

  	
  “Relevant
  Client”

  	
   

  	
  any person, firm or
  company which at any time during the 12 months prior to the Termination
  Date was a client of the Company or any other Group Company, with whom or
  which the Executive dealt regularly other than in a de minimis way or for
  whom or which the Executive was responsible on behalf of the Company or any
  other Group Company at any time during the said period

  



 

















 


	
  21.1.7

  	
   

  	
  “Relevant
  Goods and Services”

  	
   

  	
  any goods and services
  competitive with those supplied by the Company or any other Group Company at
  any time during the 12 months prior to the Termination Date in the
  supply of which the Executive was regularly involved or concerned at any time
  during the said period

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.1.8

  	
   

  	
  “Relevant
  Period”

  	
   

  	
  the period of the
  Employment and the period of 12 months from the Termination Date except that
  any period of garden leave served by the Executive pursuant to
  Clause 4.4 shall reduce the Relevant Period accordingly

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.1.9

  	
   

  	
  “Relevant
  Supplier”

  	
   

  	
  any person, firm or
  company which at any time during the 12 months prior to the Termination
  Date was a supplier of any goods or services (other than utilities and goods
  or services supplied for administrative purposes) to the Company or any other
  Group Company and with whom or which the Executive had personal dealings
  during the Employment other than in a de minimis way

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  21.1.10

  	
   

  	
  “Termination
  Date”

  	
   

  	
  the date on which the
  Employment shall terminate

  



 


21.2            Without prejudice to Clause 5.5 (Executive not to be
employed in any other business) the Executive shall not without the prior
written consent of the Board directly or indirectly at any time within the
Relevant Period engage or be concerned or interested in any business within the
Relevant Area which (a) competes or (b) will at any time during the
Relevant Period compete with the Business. 
Nothing in this sub-clause shall prevent the Executive from being or
becoming a Minority Holder provided that the Executive discloses this to the
Company.


 


21.3            The Executive shall not without the prior written consent of
the Board directly or indirectly at any time within the Relevant Period:-


 


21.3.1         (a)      solicit the
custom of; or


 


(b)        facilitate the solicitation of; or


 


(c)        deal with


 


any Relevant
Client in respect of any Relevant Goods and Services; or


 


21.3.2         (a)      solicit the
custom of; or


 


(b)        facilitate the solicitation of; or


 


(c)        deal with


 


any
Prospective Client in respect of any Relevant Goods and Services; or


 


21.3.3         (a)      interfere; or


 


(b)        endeavour to interfere,


 

















 


with the
continuance of supplies to the Company and/or any other Group Company (or the
terms relating to those supplies) by any Relevant Supplier.


 


21.4            The Executive shall not without the prior written consent of
the Board directly or indirectly at any time during the Relevant Period:-


 


21.4.1         entice away from the Company or any other Group Company; or


 


21.4.2         endeavour to entice away from the Company or any other Group
Company; or


 


any Key
Personnel.


 


21.5            The Executive shall not without the prior written consent of
the Board directly or indirectly at any time during the Relevant Period:-


 


21.5.1         employ or engage; or


 


21.5.2         endeavour to employ or engage


 


any Key
Personnel.


 


21.6            The Executive acknowledges that the provisions of this
Clause are fair, reasonable and necessary to protect the goodwill and interests
of the Company and any other Group Companies (the “Interests”).  Whilst the provisions of this Clause 21
have been framed with a view to ensuring that the Interests are adequately
protected taking account of the Group’s legitimate expectations of the future
development of the business, it is acknowledged by the Executive that the
business may change over time and as a result it may become necessary to amend
the provisions of this Clause 21 in order to ensure that the Interests
remain adequately protected.  The
Executive, therefore, agrees that the Company shall be entitled to propose
amendments to the provisions of this Clause 21 in accordance with
Clause 21.7 below in order to protect the Interests.


 


21.7            In order to amend the provisions of this Clause 21, the
Company shall notify the Executive in writing of why it believes it is
necessary to amend Clause 21 and the amendments which it proposes.  The Executive shall then have a period of
14 calendar days in which to put forward any objections which he might
have to the proposed amendments.  In the
event of the Executive not putting forward any such objections, then this
Clause 21 shall take effect with the proposed amendments on the expiry of
the 14 day period.  In the event of
the Executive putting forward any objections, the Company shall endeavour to
accommodate them, insofar as they are reasonable and where reasonably possible,
to agree the amendments with the Executive.


 


21.8            The Executive acknowledges that the provisions of this
Clause 21 shall constitute severable undertakings given to the Company for
itself and for the benefit of and as trustee for each of the other Group
Companies and the said undertakings may be enforced by the Company on its own
behalf and on behalf of any of the other Group Companies.


 


21.9            If any of the restrictions or obligations contained in this
Clause 21 is held not to be valid on the basis that it exceeds what is
reasonable for the protection of the goodwill and interests of the Company and
any other Group Company but would be valid if part of the wording were deleted
then such restrictions or obligations shall apply with such deletions as may be
necessary to make it enforceable.


 


21.10          The Executive acknowledges and agrees that he shall be
obliged to draw the provisions of this Clause 21 to the attention of any
third party who may at any time before or after the termination of the
Employment offer to employ or engage the Executive in any capacity and for whom
or with whom the Executive intends to work during the Relevant Period.


 

















 


21.11          The Executive shall, at the request and cost of the Company,
enter into a direct agreement or undertaking with any other Group Company to
which the Executive provides services whereby he will accept restrictions
corresponding to the restrictions in this Clause (or such of them as may be
appropriate in the circumstances) as the Company may require in the
circumstances.


 


22.              INVENTIONS AND COPYRIGHT


 


22.1            It shall be a duty of the Executive during the Employment to
consider and keep under review the ways if any in which the products, services,
processes, equipment, systems  and
activities of the Company and any other Group Company might be improved and/or
enhanced.


 


22.2            If during the Employment the Executive alone or with others
makes or discovers any Invention he shall promptly disclose it to the Board
giving full particulars of it including all necessary drawings, models and
specifications and the Executive agrees and acknowledges that:-


 


22.2.1        because of the nature of his duties and the responsibilities
arising from them he has a special obligation to further the interests of the
Company so that all Inventions made by the Executive in the performance of his
duties or as a result of any special project for the Company outside the scope
of his normal duties and all rights in such Inventions shall belong to the
Company; and


 


22.2.2        the provisions of this sub-clause:-


 


(a)        shall not entitle the Executive to any compensation beyond
the salary and bonus to which he is entitled under Clause 8 of this
Agreement except that in the case of any Invention on which a British patent
has been granted or assigned to the Company where the Company has derived
outstanding benefit from such patent, the Executive may be entitled by virtue
of section 40 of the Patents Act 1977 to claim additional
compensation; and


 


(b)        shall not restrict the Executive’s rights under
sections 39 to 43 of the Patents Act 1977.


 


22.3            The Executive shall promptly disclose to the Board any
Copyright Work and/or Design Right Work originated, conceived, written or made
during the course of the Employment and hereby acknowledges that by virtue of
the Employment the Copyright and/or Design Right in any such Work vests
automatically and forthwith in the Company.


 


22.4            The Executive hereby waives all and any moral rights (as
defined in Chapter IV of the Copyright Designs and Patents Act 1988).


 


22.5            The Executive shall, at the cost of the Company and on
demand, execute all such documents and do all such other acts as the Company
shall require to enable the Company or its nominee to obtain the full benefit
of any Invention, Copyright Work and Design Right Work to which the Company is
entitled and all the rights therein and to secure such patent, utility, model,
copyright or design registration or similar protection in any part of the world
as the Company may consider appropriate.


 


22.6            The Executive shall give to the Company, or any successor in
title therefrom, such assistance as the Company may require (in its absolute
discretion) in connection with any dispute or threatened dispute directly or
indirectly relating to any Invention, Copyright Work or Design Right Work or
any associated right or registration or other protection in respect thereof
(including but not limited to the execution of documents, the swearing of any
declarations or oaths, the providing of information and the participation in
any proceedings before any Court or tribunal).


 

















 


22.7            The Executive shall not disclose to any other Person without
the consent of the Company being previously obtained (which if given may be
subject to conditions) the details of any Invention, Copyright Work or Design
Right Work.


 


22.8            The Executive hereby irrevocably authorises any director of
the Company for the time being in his name and on his behalf  to execute any documents and to do everything
necessary to give effect to this Clause 22.


 


22.9            If the Executive shall during the Employment make or
discover any Invention or make, originate, conceive or write any Copyright Work
or Design Right Work in which, despite the previous provisions of this Clause,
any intellectual property rights belong to the Executive and not the Company
then the Executive shall if so required by the Board:-


 


22.9.1        negotiate in good faith with the Company for the assignment
or licensing to the Company or its nominee of such rights; and


 


22.9.2        until such rights shall be fully and absolutely vested in
the Company shall hold the same as trustee for the Company.


 


22.10          Decisions as to the patenting and exploitation of any
Invention shall be at the sole discretion of the Company and the Company shall
not be under any obligation to take any step or register any patent or other
right in respect of, or to develop or exploit, any Invention or Copyright or
Design Work made, discovered, originated, conceived or written by the
Executive.


 


22.11          Nothing in this Clause shall be taken to limit or derogate
from the obligations of the Executive under Clause 20 (confidential
information).


 


23.              MISREPRESENTATION


 


The Executive
shall not, after termination of the Employment, wrongfully represent himself as
being employed by, or connected with, the Company or any other Group Company.


 


24.              DISCIPLINARY AND GRIEVANCE PROCEDURES


 


24.1            There is no specific disciplinary procedure which applies to
the Employment.


 


24.2            If the Executive is dissatisfied with any disciplinary
decision or seeks redress for any grievance relating to the Employment he
should raise the issue with the Managing Director of the Company.  If this does not lead to a resolution
satisfactory to the Executive he may formally refer the issue to the President
and CEO of Phase Forward Incorporated.


 


25.              DATA PROTECTION


 


25.1            The Executive shall at all times during the Employment act
in accordance with the Data Protection Act 1998 (the “1998 Act”)
and shall comply with any policy introduced by the Company from time to time to
comply with the 1998 Act.


 


25.2            The Executive agrees to provide the Company in its capacity
as Data Controller with all Personal Data relating to him which is necessary or
reasonably required for the proper performance of this Agreement, the
administration of the employment relationship (both during and after the
Employment) or the conduct of the Company’s business or where such provision is
required by law (the “Authorised Purposes”).


 

















 


25.3            The Executive explicitly consents to the Company or any
other Group Company processing his Personal Data, including his Sensitive
Personal Data, where this is necessary or reasonably required to achieve one or
more of the Authorised Purposes.


 


25.4            The Executive acknowledges that the Company may, from time
to time collect or disclose his Personal Data (including his Sensitive Personal
Data) from and to third parties (including without limitation the Executive’s
referees, any management consultants or computer maintenance companies engaged
by the Company, the Company’s professional advisers and any other Group
Companies) and consents to such collection and disclosure even where this
involves the transfer of such data outside the European Economic Area where
this is necessary or reasonably required to achieve one or more of the
Authorised Purposes.


 


25.5            The Company agrees to process any Personal Data made available
to it by the Executive in accordance with the provisions of the 1998 Act.


 


25.6            In this Clause “Data Controller”
“Personal Data” “processing”
and “Sensitive Personal Data” shall have the
meaning set out in sections 1 and 2 of the 1998 Act.


 


26.              THIRD PARTY RIGHTS


 


26.1            The Company and the Executive agree that no term of this
Agreement (including the terms of any documents incorporated either expressly
or by implication into this Agreement) shall be enforceable by a Third Party in
his own right by virtue of section 1(1) of the Contracts (Rights of
Third Parties) Act 1999 and for the avoidance of doubt this Agreement may
be rescinded or varied in whole or in part by agreement between the Company and
the Executive without the consent of any such Third Party.


 


26.2            For the purposes of this Clause a “Third Party”
means any person who is not named as a party to this Agreement.


 


27.              PREVIOUS AGREEMENTS


 


This
Agreement constitutes the entire understanding between the parties with respect
to its subject matter and supersedes all previous agreements and undertakings
(if any) relating to the employment of the Executive by the Company or any
other Group Company.


 


28.              NOTICES


 


28.1            Any notice to be given under this Agreement by either party
shall be in writing and if given by the Company shall be signed by a Director
(other than the Executive) or some other duly authorised officer or agent of
the Company and if given by the Executive shall be signed by him.


 


28.2            Any notice to the Company shall be served at the address of
its registered office for the time being and may be delivered by hand or sent
by first class recorded delivery post.


 


28.3            Any notice to the Executive shall be served on him in person
or at his last known private address and may be delivered by hand to that
address or sent by first class recorded delivery post.


 


29.              LAW AND JURISDICTION


 


29.1            This Agreement is governed by and shall be construed in
accordance with English law.


 


29.2            The parties submit to the exclusive jurisdiction of the
English courts with regard to any dispute or claim arising under this Agreement
except to the extent that it is provided elsewhere in this Agreement that such
dispute or claim should be resolved by any person acting as an expert.


 

















 


30.              GENERAL PROVISIONS


 


30.1            Any amendment to this Agreement (other than an amendment to
Clause 21 which must be made in accordance with Clause 21.7) must be
recorded in writing and signed by the parties to be effective.  For the avoidance of doubt the provisions of
this Clause do not apply to any amendments to the Schemes referred to in
Clause 12 which must be made in accordance with Clause 12.2.


 


30.2            The complete or partial invalidity or unenforceability of
any provision of this Agreement for any purpose shall in no way affect:-


 


30.2.1         the validity or enforceability of such provisions for any
other purpose;


 


30.2.2         the remainder of such provisions; or


 


30.2.3         the remaining provisions of this Agreement.


 


30.3            This Agreement is intended by the Company to be a statement
in writing of the terms of the Employment under section 1 of the Act.


 


30.4            If there is any conflict between the provisions of this
Agreement and the provisions of the articles of association of the Company from
time to time the said articles shall prevail.


 


30.5            No waiver by the Company other than one made in writing by
resolution of the Board of any breach by the Executive of any provision of this
Agreement and no failure, delay or forbearance by the Company in exercising any
of its rights shall be taken to be a waiver of such breach or right or shall
prevent the Company from later taking any action or making any claim in respect
of such breach or right.


 


30.6            There are no collective agreements which directly affect the
terms and conditions of the Employment.


 


30.7            The Executive is not required to work outside the UK for a
consecutive period in excess of one month and accordingly there are no
particulars in this regard relevant to the Employment.


 


SIGNED by or on behalf of the parties on the
date which first appears in this Agreement.


 


	
  SIGNED by Stephen Powell

  	
  )

  	
  /s/ Stephen Powell

  
	
   

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by Robert Weiler (Director/Secretary)

  	
  )

  	
  /s/ Robert Weiler

  
	
  for and on behalf of
  the Company

  	
  )