**Exhibit 10.44**

 

 

TerminationAgreement

 

 

Vertis Digital Services Limited

 

and

 

Adriaan Roosen

 

 

9 November 2005

 

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**THIS AGREEMENT**is made on 9 November 2005

 

**BETWEEN:**

** **

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

 

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

 

**RECITALS**

** **

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

 

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

 

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

 

**THE PARTIES AGREE AS FOLLOWS:**

** **

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

 

**“Group Company”**means the Company, its holding company (asdefined in section 736 of the Companies Act 1985) or any subsidiaryundertaking (as defined in section 258 of the Companies Act 1985) orassociated company (as defined in sections 416 et seq. of the Income andCorporation Taxes Act 1988) of the Company’s holding company;

 

**“HMRC”** means HerMajesty’s Revenue & Customs and, where relevant, any predecessor bodywhich 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 withthe Company and any Group Companies with effect from the Termination Date savefor clauses 6 and 7  of the ServiceAgreement which, subject to clause 7 below, is intended to, and which theExecutive agrees does, survive termination;

 

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

 

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

 

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

 

3.                                           The Executive warrants:

 

(a)                            that he has resigned from any directorships he holds in theCompany and from all other offices which he holds with any other GroupCompanies;

 

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

 

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

 

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

 

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

 

(a)                            pay to the Executive the sum of £185,000 (less such UnitedKingdom tax and other statutory deductions that it is obliged to deduct fromsuch payment). This sum shall be paid following receipt by the Executive of a form P45and within 14 days following the later of the Termination Date and the date onwhich the Company receives a copy of this agreement executed by the Executive. Provideda form P45 has been issued before the payment is made, income tax at 22per cent. will be deducted from the payment remainder. National insurancecontributions will also be deducted;

 

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

 

(c)                            contribute up to £500 (including any disbursements butexcluding VAT) towards the legal fees incurred by the Executive in reachingthis agreement. This payment shall be made directly to the legal advisersfollowing receipt of appropriate invoices addressed to the Executive inaccordance with the appropriate HMRC extra-statutory concession;

 

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

 

(e)                            respond to any written requests for a reference that areaddressed to Chief Legal Officer, Vertis, Inc., 18th Floor, 250West Pratt Street, Baltimore, Maryland 21201, USA in accordance with the proforma reference in schedule 1 provided that the Company may makeamendments or deviations from the pro forma reference that (acting reasonably)it considers necessary as a result of information concerning the Executive’semployment with the Company or its termination that comes to the attention ofthe Company only after the date of signing of this agreement. Whilst any suchreference will be given in confidence and good faith, neither the Company norits officers or employees will be responsible or liable to the Executive, therecipient of the reference or any third party for any errors, omissions orinaccuracies in the information it contains or for any loss or damage that may resultfrom it. The Company reserves the right to make such disclosures as required bylaw or to comply with regulatory requirements, even if this means straying fromthe reference within schedule 1.

 

6.                                           The payments and benefits referred to in clause5 above (the **“Settlement”**) shall be subject tothe following conditions:

 

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(a)                            the Executive agrees that he has carefully considered allthe facts and circumstances relating to his office and employment and its theirtermination 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 orfixed-term status;

 

claims for victimisation;

 

claims for unlawful deductions from wages;

 

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

 

claims in relation to the right to beaccompanied under the a claim for compensation under section 13 of theData 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 LabourRelations (Consolidation) Act 1992;

 

claims arising under the Information andConsultation of Employees Regulations 2004;

 

claims in relation to European works councils;

 

claims in relation to requests for flexibleworking;

 

claims under the Protection from Harassment Act1997;

 

claims in relation to the failure to providewritten particulars of employment under section 1 of the Employment RightsAct 1996 (as amended);

 

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

 

any claims under the Group Company’s executivecompensation 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 againstany Group Company or its or their employees or officers arising out of hisemployment or its termination or his directorships or past directorships ortheir termination and he irrevocably waives any such claims or rights of actionwhich he now has or may become aware of hereafter;

 

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

 

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

 

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

 

(e)                            without prejudice to the Executive’s common law andcontractual obligations, he hereby undertakes that he will not at any time useor disclose to any person, company, firm, individual or organisation (exceptwith the agreement of the Company or as required by law) any trade secret orconfidential information belonging or relating to any Group Company which heobtained during his employment with any such companies including but notlimited to details of actual and potential customers, suppliers, trade agents,arrangements, discounts or terms of business and the terms of this agreement. Thisshall not apply to any such information which comes into the public domain as aresult of a disclosure required by law or a protected disclosure under thePublic Interest Disclosure Act 1998 or by some means other than an unauthoriseddisclosure by the Executive or the disclosure of the terms of this agreement tothe Executive’s professional advisers

 

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providedalways that disclosure to the Executive’s professional advisers shall be onterms that they agree to keep the same confidential;

 

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

 

(g)                           the Executive hereby warrants that:

 

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

 

(ii)                           he has received independent legal advice from Caroline Omareas to the terms and effect of this agreement and the fact that he will beprecluded from bringing a claim against any Group Company relating to hisemployment or his directorships or their termination including (but not limitedto) 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 deductionsfrom wages, claims in relation to the Working Time Regulations 1998, thenational minimum wage, the Trade Union and Labour Relations (Consolidation) Act1992, European works councils, requests for flexible working, the Protectionfrom Harassment Act 1997, or claims that he has been dismissed or has otherwisesuffered a detriment for making a qualifying and protected disclosure for thepurposes of part IVA of the Employment Rights Act 1996,******the Information and Consultation ofEmployees Regulations 2004 and the Data Protection Act 1998;

 

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

 

(iv)                       there is (and was at the time the advice was given) acontract of insurance or an indemnity provided for members of a profession orprofessional body covering the risk of a claim by the Executive in respect ofany 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 forany Group Company in relation to the termination of the Executive’s employmentwith the Company or this agreement; and

 

(vii)                    CarolineOmare shall sign this agreement to confirm the facts in this clause 6(h) arecorrect.

 

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

 

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Equality (Religion or Belief) Regulations 2003and Schedule 4 of the Employment Equality (Sexual Orientation) Regulations2003 and the Information and Consultation of Employees Regulations 2004 havetherefore been satisfied;

 

(h)                           If the Executive (i) breaches any material term of thisagreement; or (ii) raises any grievance in writing with any Group Companywithin four months of the Termination Date or (iii) commences proceedingsagainst the Company or any Group Company in breach of this agreement then hewill pay to the Company on demand by way of liquidated damages an amountequivalent to, in the case of (i) above, the damages suffered by theCompany 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 theExecutive, or the amount which could be awarded in such proceedings, and inboth cases the Company’s costs in connection with such breach or proceedingsand any such payment shall be recoverable as a debt; and

 

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

 

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

 

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

 

9.                                           The Contracts (Rights of Third Parties) Act 1999shall only apply to this agreement in relation to any Group Company. No personother than the parties to this agreement and any Group Company and thedirectors of any Group Company shall have any rights under it and it will notbe enforceable by any person other than those parties.

 

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

 

11.                                     This agreement may be executed by counterpartswhich together shall constitute one agreement. Either party may enter intothis agreement by executing a counterpart and this agreement shall nottake effect until it has been executed by both parties. Delivery of an executedcounterpart or a signature page by facsimile shall take effect asdelivery of an executed counterpart of this agreement provided that therelevant party shall give the other the original of such page as soon asreasonably practicable thereafter.

 

12.                                     This agreement (and any dispute, controversy,proceedings or claim of whatever nature arising out of or in any way relatingto this agreement or its formation) shall be governed by and construed inaccordance with English law. Each of the parties to this agreement irrevocablyagrees that the courts of England and Wales shall have exclusive jurisdictionto hear and decide any suit, action or proceedings, and/or to settle anydisputes which

 

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may ariseout of or in connection with this agreement and, for these purposes, each partyirrevocably submits to the jurisdiction of the courts of England and Wales.

 

**IN WITNESS** whereof this agreement has been executed as a deed anddelivered 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 yourequested a reference for Adriaan Rossen.

 

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

 

Adriaan****left theCompany’s employment on • 200•.

 

This reference is given in confidence and onlyfor 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 itsofficers or employees has any responsibility or liability to you, the subjectof this reference, or any third party for any errors, omissions or inaccuraciesin the information it contains or for any loss or damage that may resultfrom reliance being placed upon this reference.

 

Yours sincerely

 

 

For and on behalf of Vertis, Inc.

 

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