Exhibit 10.44





 


 


Termination
Agreement


 


 


Vertis Digital Services Limited


 


and


 


Adriaan Roosen


 


 


9 November 2005


 

















 


THIS AGREEMENT is made on 9 November 2005


 


BETWEEN:


 


(1)                                      VERTIS DIGITAL SERVICES LIMITED whose registered office is at The Green
Building, 50-54 Beak Street, London W1F 9RN (the “Company”);
and


 


(2)                                      ADRIAAN ROOSEN whose address is Stationsweg 26, 6861 EH
Oosterbeek, The Netherlands (the “Executive”).


 


RECITALS


 


(A)                                  The Executive has been employed by the Company under the
terms of a service agreement dated 31 August 2003 made between the
Executive and Vertis Digital Services Limited (the “Service
Agreement”).


 


(B)                                    The Company is entering into this termination agreement for
itself and as agent for all its Group Companies and is duly authorised on their
behalf.


 


(C)                                    The Executive has received independent legal advice from a
qualified lawyer as to the terms and effect of this termination agreement.


 


THE PARTIES AGREE AS FOLLOWS:


 


1.                                           In this agreement the following terms shall have
the meanings set out below:


 


“Group Company” means the Company, its holding company (as
defined in section 736 of the Companies Act 1985) or any subsidiary
undertaking (as defined in section 258 of the Companies Act 1985) or
associated company (as defined in sections 416 et seq. of the Income and
Corporation Taxes Act 1988) of the Company’s holding company;


 


“HMRC” means Her
Majesty’s Revenue & Customs and, where relevant, any predecessor body
which carried out part of its functions; and


 


“Termination Date” means 1 November 2005.


 


2.                                           The Executive and the Company:


 


(a)                            accepts and confirms the termination of his employment with
the Company and any Group Companies with effect from the Termination Date save
for clauses 6 and 7  of the Service
Agreement which, subject to clause 7 below, is intended to, and which the
Executive agrees does, survive termination;


 


(b)                           shall, subject to clause 2.3, be entitled to receive his
salary and contractual benefits up to and including the Termination Date in the
normal way (subject to the normal PAYE deductions);


 


(c)                            shall not be entitled to receive any payments in respect of
bonus or commission for the period up to the Termination Date; and


 


(d)                           shall, until the Termination Date, remain on garden leave as
agreed with the Company on 6 July 2005.


 


3.                                           The Executive warrants:


 


(a)                            that he has resigned from any directorships he holds in the
Company and from all other offices which he holds with any other Group
Companies;


 


(b)                           that he does not hold any trusteeships; and


 


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(c)                            that he does not hold any qualifying or nominee
shareholdings as a result of his employment by the Company.


 


4.                                           The Executive will be separately notified of any
rights and/or options that may be available to him under the Executive’s
pension scheme and any Company or Group Company shares, share incentive plan or
stock option plan as at the Termination Date by the trustees or administrators
of the scheme in accordance with the rules of the relevant Plan/Scheme.


 


5.                                           By way of compensation for loss of office and
the early termination of the Executive’s employment (and provided he has
returned to the Company a copy of this agreement signed by him and his adviser
and satisfies the provisions of this agreement), the Company shall:


 


(a)                            pay to the Executive the sum of £185,000 (less such United
Kingdom tax and other statutory deductions that it is obliged to deduct from
such payment). This sum shall be paid following receipt by the Executive of a form P45
and within 14 days following the later of the Termination Date and the date on
which the Company receives a copy of this agreement executed by the Executive. Provided
a form P45 has been issued before the payment is made, income tax at 22
per cent. will be deducted from the payment remainder. National insurance
contributions will also be deducted;


 


(b)                           (subject to the rules of the scheme as amended from
time to time HMRC limits in force and as amended from time to time) procure
that a special contribution of £9,250 is made into the Vertis Group pension
plan with Norwich Union prior to the Termination Date to augment the Executive’s
benefits under the scheme. If the Company cannot make the special contribution
in whole or in part because of such rules or HMRC limits, then the
Company will pay into the scheme the maximum amount that can be paid into the
scheme and will pay the remainder of the special contribution to the Executive
(less such United Kingdom tax and other statutory deductions that it is obliged
to deduct from such payments);


 


(c)                            contribute up to £500 (including any disbursements but
excluding VAT) towards the legal fees incurred by the Executive in reaching
this agreement. This payment shall be made directly to the legal advisers
following receipt of appropriate invoices addressed to the Executive in
accordance with the appropriate HMRC extra-statutory concession;


 


(d)                           will be subject to tax and national insurance contributions
in the normal way; and


 


(e)                            respond to any written requests for a reference that are
addressed to Chief Legal Officer, Vertis, Inc., 18th Floor, 250
West Pratt Street, Baltimore, Maryland 21201, USA in accordance with the pro
forma reference in schedule 1 provided that the Company may make
amendments or deviations from the pro forma reference that (acting reasonably)
it considers necessary as a result of information concerning the Executive’s
employment with the Company or its termination that comes to the attention of
the Company only after the date of signing of this agreement. Whilst any such
reference will be given in confidence and good faith, neither the Company nor
its officers or employees will be responsible or liable to the Executive, the
recipient of the reference or any third party for any errors, omissions or
inaccuracies in the information it contains or for any loss or damage that may result
from it. The Company reserves the right to make such disclosures as required by
law or to comply with regulatory requirements, even if this means straying from
the reference within schedule 1.


 


6.                                           The payments and benefits referred to in clause
5 above (the “Settlement”) shall be subject to
the following conditions:


 


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(a)                            the Executive agrees that he has carefully considered all
the facts and circumstances relating to his office and employment and its their
termination and accepts the Settlement in full and final settlement of:


 


(i)                              the following particular claims:


 


all claims for damages for breach of contract;


 


unfair dismissal claims;


 


claims in relation to redundancy;


 


equal pay claims;


 


claims for discrimination on the grounds of sex,
race, disability, religion or belief, sexual orientation or part-time or
fixed-term status;


 


claims for victimisation;


 


claims for unlawful deductions from wages;


 


claims that he has been dismissed or has
otherwise suffered a detriment for making a qualifying and protected disclosure
for the purposes of part IVA of the Employment Rights Act 1996; and


 


claims in relation to the right to be
accompanied under the a claim for compensation under section 13 of the
Data Protection Act 1998.


 


(ii)                           the following additional claims:


 


(A)                        claims under the Working Time Regulations 1998;


 


claims under the National Minimum Wage Act 1998;


 


claims under the Trade Union and Labour
Relations (Consolidation) Act 1992;


 


claims arising under the Information and
Consultation of Employees Regulations 2004;


 


claims in relation to European works councils;


 


claims in relation to requests for flexible
working;


 


claims under the Protection from Harassment Act
1997;


 


claims in relation to the failure to provide
written particulars of employment under section 1 of the Employment Rights
Act 1996 (as amended);


 


a claim for compensation under section 13
of the Data Protection Act 1998; and


 


any claims under the Group Company’s executive
compensation or equity plans.


 


(iii)                        any other rights of action whatsoever and howsoever arising
(whether under common law, statute, European Community law or otherwise)
whether in the United Kingdom or any other country or jurisdiction and whether


 


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contemplated or not which he has or may have against
any Group Company or its or their employees or officers arising out of his
employment or its termination or his directorships or past directorships or
their termination and he irrevocably waives any such claims or rights of action
which he now has or may become aware of hereafter;


 


(b)                           the Executive warrants that he has no claims against any
Group Company or their employees or officers other than those mentioned in
clause 6(a)(i)(ii) and (iii);


 


(c)                            the Executive hereby agrees to be responsible for the
payment of any further tax and other statutory deductions (whether the same are
payable in the United Kingdom or elsewhere) in respect of all and any part of
the Settlement and to indemnify each and every Group Company (and to keep each
and every Group Company indemnified on a continuing basis) against all and any
liabilities to taxation or statutory deductions (including any interest, fines,
penalties, surcharges, costs and expenses) which they may incur in respect
of or by reason of all and any part of the Settlement and to the extent
that any Group Company incurs any liability to tax in respect of any payment
under this indemnity, the Executive shall pay such additional amounts to the
Group Company as are required to ensure that the net amount received and
retained by the Group Company (after tax) is equal to the full amount which
would have been received and retained had no such liability to tax been
incurred provided that this undertaking shall not confer any right on any Group
Company to recover secondary class 1 or class 1A or primary class 1
national insurance contributions to the extent that recovery of the same is
prohibited by law. Before making any further payment of tax or other statutory
deductions in relation to the Settlement or requiring any payment from the
Executive under this indemnity, the Company will inform the Executive of
the body claiming that the payment is due, provide the Executive with all
documentation relating to the claim, consult with the Executive regarding any
response to such claim and providing it does not mean that the payment is made
out of time give the Executive (or his advisers) an opportunity to write to the
relevant body disputing the claim;


 


(d)                           the Executive warrants that he has returned to the Company
all documents (including copies), software, credit or charge cards and any
other property belonging to any of the Group Companies, that he has not downloaded
any information or software belonging to any Group Company, that he has
disclosed any passwords or computer access codes relevant to the business of
any Group Company and he undertakes to return to the Company forthwith any such
property which may come into his possession or control in the future and
that all correspondence or e-mails belonging to the Company and held on the
Executive’s personal computer are transferred to compact disc or similar media
and returned to the Company and that any copies held on the personal computer
are permanently deleted;


 


(e)                            without prejudice to the Executive’s common law and
contractual obligations, he hereby undertakes that he will not at any time use
or disclose to any person, company, firm, individual or organisation (except
with the agreement of the Company or as required by law) any trade secret or
confidential information belonging or relating to any Group Company which he
obtained during his employment with any such companies including but not
limited to details of actual and potential customers, suppliers, trade agents,
arrangements, discounts or terms of business and the terms of this agreement. This
shall not apply to any such information which comes into the public domain as a
result of a disclosure required by law or a protected disclosure under the
Public Interest Disclosure Act 1998 or by some means other than an unauthorised
disclosure by the Executive or the disclosure of the terms of this agreement to
the Executive’s professional advisers


 


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provided
always that disclosure to the Executive’s professional advisers shall be on
terms that they agree to keep the same confidential;


 


(f)                              the Executive warrants that he has made a full and frank
disclosure to John Howard of all matters which might reasonably affect the
willingness of the Company to enter into this agreement;


 


(g)                           the Executive hereby warrants that:


 


(i)                              having received independent legal advice from Caroline Omare
of Colman Coyle Solicitors, a qualified lawyer, he has raised all and any
claims, complaints or potential proceedings that he may have arising out
of the termination of his employment on the Termination Date, namely those
claims listed in clause 6(a)(i)(ii) and (iii);


 


(ii)                           he has received independent legal advice from Caroline Omare
as to the terms and effect of this agreement and the fact that he will be
precluded from bringing a claim against any Group Company relating to his
employment or his directorships or their termination including (but not limited
to) any claim for breach of contract, unfair dismissal, redundancy, equal pay,
discrimination on the grounds of race, sex, disability, religion or belief,
sexual orientation or part-time or fixed-term status, victimisation, unlawful deductions
from wages, claims in relation to the Working Time Regulations 1998, the
national minimum wage, the Trade Union and Labour Relations (Consolidation) Act
1992, European works councils, requests for flexible working, the Protection
from Harassment Act 1997, or claims that he has been dismissed or has otherwise
suffered a detriment for making a qualifying and protected disclosure for the
purposes of part IVA of the Employment Rights Act 1996, the Information and Consultation of
Employees Regulations 2004 and the Data Protection Act 1998;


 


(iii)                        the solicitor who advised him holds (and held at the time
the advice was given) a current practising certificate issued by The Law
Society;


 


(iv)                       there is (and was at the time the advice was given) a
contract of insurance or an indemnity provided for members of a profession or
professional body covering the risk of a claim by the Executive in respect of
any loss arising in consequence of the advice;


 


(v)                          he has received satisfactory evidence of the above facts;


 


(vi)                       neither Caroline Omare nor Colman Coyle Solicitors acted for
any Group Company in relation to the termination of the Executive’s employment
with the Company or this agreement; and


 


(vii)                    Caroline
Omare shall sign this agreement to confirm the facts in this clause 6(h) are
correct.


 


The conditions regulating compromise agreements
contained in section 77 of the Sex Discrimination Act 1975, section 72
of the Race Relations Act 1976, section 288(2B) of the Trade Union and
Labour Relations (Consolidation) Act 1992, schedule 3A of the Disability
Discrimination Act 1995, section 203 of the Employment Rights Act 1996,
Regulation 35(2) of the Working Time Regulations 1998, section 49 of
the National Minimum Wage Act 1998, Regulation 41(3) of the Transnational
Information and Consultation of Employees Regulations 1999, Regulation 9 of the
Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000
and Regulation 10 of the Fixed-term Employees (Prevention of Less Favourable
Treatment) Regulations 2002, Schedule 4 of the Employment


 


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Equality (Religion or Belief) Regulations 2003
and Schedule 4 of the Employment Equality (Sexual Orientation) Regulations
2003 and the Information and Consultation of Employees Regulations 2004 have
therefore been satisfied;


 


(h)                           If the Executive (i) breaches any material term of this
agreement; or (ii) raises any grievance in writing with any Group Company
within four months of the Termination Date or (iii) commences proceedings
against the Company or any Group Company in breach of this agreement then he
will pay to the Company on demand by way of liquidated damages an amount
equivalent to, in the case of (i) above, the damages suffered by the
Company as a result of the breach or, in the case of (ii) or (iii) above,
the value of any damages, amount of profits or other compensation sought by the
Executive, or the amount which could be awarded in such proceedings, and in
both cases the Company’s costs in connection with such breach or proceedings
and any such payment shall be recoverable as a debt; and


 


(i)                               the Executive warrants that he will not hold himself out as
representing the Company or make to any third party any misleading, untrue or
derogatory statements (whether orally or in writing) about any Group Company or
their officers or employees.


 


7.                                           The Executive undertakes and agrees to abide by
the terms of clause 6 of the Service Agreement as a separate and distinct
obligation of this agreement and as if the terms of such clause were set out
herein save that for the purposes of clause 6(g)(i) of the Service
Agreement the Company consents to the Executive undertaking work for Bezier
Limited. For the avoidance of doubt the Executive may not be engaged,
assist or be interested in any other undertaking which may contravene
clause 6(g)(i) without the Company’s prior written consent and the other
terms of clause 6 remain in full force and effect whether the Executive is
working for Bezier Limited or otherwise.


 


8.                                           Once executed by both parties this agreement
will form an open and binding agreement notwithstanding the fact that the
front sheet is marked “without prejudice” and “subject to contract”.


 


9.                                           The Contracts (Rights of Third Parties) Act 1999
shall only apply to this agreement in relation to any Group Company. No person
other than the parties to this agreement and any Group Company and the
directors of any Group Company shall have any rights under it and it will not
be enforceable by any person other than those parties.


 


10.                                     If any provision or part of a provision of
this agreement shall be or become void or unenforceable for any reason, this
shall not affect the validity of that provision or any remaining provisions of
this agreement in this or any other jurisdiction and the provision may be
severable and if any provision would be treated as valid and effective if part of
the wording was deleted, it shall apply with such modifications as necessary to
make it valid and effective.


 


11.                                     This agreement may be executed by counterparts
which together shall constitute one agreement. Either party may enter into
this agreement by executing a counterpart and this agreement shall not
take effect until it has been executed by both parties. Delivery of an executed
counterpart or a signature page by facsimile shall take effect as
delivery of an executed counterpart of this agreement provided that the
relevant party shall give the other the original of such page as soon as
reasonably practicable thereafter.


 


12.                                     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. Each of the parties to this agreement irrevocably
agrees that the courts of England and Wales shall have exclusive jurisdiction
to hear and decide any suit, action or proceedings, and/or to settle any
disputes which


 


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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 and Wales.


 


IN WITNESS whereof this agreement has been executed as a deed and
delivered on the date first above written.


 


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  Signed as a deed by

  	
  )

  	
  /S/ Adriaan Roosen

  	
   

  
	
  Adriaan
  Roosen

  	
  )

  	
   

  
	
  in the presence of:

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
  Witness signature:

  	
   

  	
  /S/ Danielle Garkov

  	
   

  
	
   

  	
   

  	
   

  
	
  Witness name:

  	
   

  	
  Danielle Garkov

  
	
   

  	
   

  	
   

  
	
  Witness address:

  	
   

  	
  Coleman Coyle (Solicitors)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Wells House, 80 Upper Street

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Islington, London N1 0NU

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  DX 147080 Islington 5

  
	
   

  	
   

  	
   

  
	
  Witness occupation:

  	
   

  	
  Solicitor (Trainee)

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Signed by George Moore
  for and on

  	
  )

  	
  /S/ George Moore

  	
   

  
	
  behalf of Vertis Digital Services

  	
  )

  	
   

  
	
  Limited

  	
  )

  	
   

  
					



 


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Signature of the Executive’s adviser as referred to


in clause 6


 


	
  Signed by the Executive’s

  	
   

  	
   

  
	
  adviser Caroline Omare of

  	
   

  	
   

  
	
  Colman Coyle Solicitors

  	
   

  	
  /S/ Caroline Omare

  	
   

  
	
  Date:

  	
   

  	
   

  



 


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SCHEDULE 1


 


Pro Forma Reference


 


[to be typed on the headed notepaper of the employer]


 


[Name]


[Address]


 


 


• 200•


 


PRIVATE & CONFIDENTIAL


 


Dear [insert name]


 


Re: Adriaan Roosen


 


I write further to your letter of • 200• in which you
requested a reference for Adriaan Rossen.


 


Adriaan joined Vertis Digital Services Limited
(the “Company”) on • 200• as Managing
Director of Vertis Europe.


 


Adriaan left the
Company’s employment on • 200•.


 


This reference is given in confidence and only
for the purposes for which it was requested. Whilst it is given in good faith,
it is on the strict understanding that neither the Company nor any of its
officers or employees has any responsibility or liability to you, the subject
of this reference, or any third party for any errors, omissions or inaccuracies
in the information it contains or for any loss or damage that may result
from reliance being placed upon this reference.


 


Yours sincerely


 


 


For and on behalf of Vertis, Inc.


 


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