EXHIBIT 4.1(o)
SERVICE AGREEMENT
DATED 29TH OCTOBER 2004
(1) VERNALIS PLC
(2) XXXX XXXXXX
XXXXX & OVERY
London
CONTENTS
CLAUSE PAGE
1. Definitions.................................................................. 2
2. Appointment.................................................................. 2
3. Duties....................................................................... 2
4. Other Activities............................................................. 3
5. Place of Performance......................................................... 3
6. Remuneration................................................................. 3
7. Expenses..................................................................... 4
8. Car.......................................................................... 4
9. Hours of Work/Holiday........................................................ 4
10. Sickness/Injury.............................................................. 4
11. Pension/Life Insurance/Medical Insurance..................................... 5
12. Grievances/Disciplinary Decisions............................................ 5
13. Confidentiality.............................................................. 5
14. Protection of Interests of the Company....................................... 6
15. Inventions................................................................... 6
16. Publicity.................................................................... 7
17. Liquidation/Amalgamation..................................................... 7
18. Default...................................................................... 8
19. Termination.................................................................. 8
20. Change of Control............................................................ 9
21. Additional Particulars....................................................... 9
22. Term and Termination......................................................... 9
23. Continuing Terms............................................................. 9
24. Notices...................................................................... 9
25. Entire Agreement............................................................. 9
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THIS AGREEMENT is made the 29th day of October 2004
BETWEEN:
(1) VERNALIS PLC (registered number 2304992) whose registered office is
situated at Oakdene Court, 613 Reading Road, Winnersh, Wokingham,
Berkshire RG41 5UA (THE COMPANY); and
(2) XXXX XXXXXX of Woodlands, Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxx, Xxxxxx XX0 0XX
(THE DIRECTOR).
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
In this Agreement the following expressions shall have the following
meanings:
SUBSIDIARY means any company which for the time being is a subsidiary
company (as such expression is defined by Section 736 of the Companies Xxx
0000 as amended by Section 144 of the Companies Act 1989) of any other
company;
ASSOCIATED COMPANY means any company which for the time being is a holding
company (as such expression is defined by Section 736 of the Companies Xxx
0000 as amended by Section 144 of the Companies Act 1989) of the Company
or any subsidiary of any such holding company;
THE BOARD means the Board of Directors of the Company;
TERMINATION DATE means the date on which the employment of the Director
under this Agreement shall terminate for whatever reason irrespective of
whether the Company shall have been in breach of this Agreement.
2. APPOINTMENT
2.1 The Director shall be appointed General Counsel of the Company (which
shall be deemed to be his job title for the purposes of this Agreement and
of the Employment Rights Act 1996) unless amended by a letter in writing
from the Company.
2.2 The appointment may be terminated by either party giving to the other not
less than 12 calendar months prior notice in writing.
2.3 The Director will be appointed a Director of the Company and will remain
so during the period of his employment by the Company.
3. DUTIES
During the continuance of his engagement hereunder the Director shall:
(a) be responsible for corporate development and associated activities,
legal services, including those of Company Secretary;
(b) perform such duties and exercise such powers, authorities and
discretions consistent with his role of General Counsel as the
Company's Chief Executive Officer or the
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Board shall from time to time delegate to him on such terms and
conditions and subject to such restrictions as the Chief Executive
Officer or the Board may from time to time reasonably impose;
(c) use his best endeavours to promote the interests of the Company and
those of its Subsidiary and Associated Companies for the time being
and shall during normal business hours unless prevented by illness
or other incapacity devote the whole of his time, attention and
abilities to the business and affairs of the Company and its
Subsidiary and Associated Companies, if any, for the time being;
(d) in the discharge of such duties and in the exercise of such powers
observe and comply with all relevant resolutions, regulations and
directions from time to time made or given by the Board.
(e) act as an officer of any Subsidiary or Associated Company or hold
any other appointment or office as nominee or representative of the
Company or any Subsidiary or Associated Company as directed by the
Board.
4. OTHER ACTIVITIES
The Director shall not during the continuance of this Agreement without
the consent of the Board (such consent not to be unreasonably withheld or
delayed) directly or indirectly engage in any other business or be
concerned or interested (within the meaning contained in Part VI of the
Companies Act 1985) in the share capital of any other business save that
he may be interested (defined as aforesaid) as a holder or beneficial
owner of not more than five per cent. (5%) of any class of stock shares or
debentures which are listed on any publicly quoted market.
5. PLACE OF PERFORMANCE
The Director's duties hereunder shall be performed at the Company's head
office or at such other place as the Chief Executive Officer or Board
shall from time to time reasonably direct and further the Chief Executive
Officer or Board shall be at liberty to appoint the Director to serve any
of its Subsidiary or Associated Companies if any for the time being
(without further remuneration unless otherwise agreed) in his capacity as
General Counsel.
6. REMUNERATION
As remuneration for his services hereunder the Director shall be entitled
to a basic salary payable at the rate of two hundred and twenty five
thousand pounds sterling ((pound)225,000) per annum (exclusive of any
bonus award, pension contribution or share option grant which may from
time to time be made by the Board) payable in equal monthly instalments
(and proportionately for any lesser period each monthly instalment being
deemed to accrue rateably from day to day) on the last day of every
calendar month in arrears. Such remuneration shall be inclusive of any
fees payable to him as a Director or other officer of the Company or of
its Subsidiary or Associated Companies if any for the time being. The
salary payable hereunder shall be variable upwards by decision of the
Board and subject to review during the month of April 2005 and at least
once in each financial year thereafter. The Company may in its absolute
discretion award to the Director a non-pensionable annual cash bonus of up
to a maximum of 60 per cent. of base salary dependant upon the achievement
of performance targets which will be notified to the Director by the Board
of Directors of Vernalis plc.
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7. EXPENSES
The Company shall pay to the Director all reasonable travelling
entertainment and other expenses incurred by him in the performance of his
duties under this Agreement. The Director shall, on being so required,
provide the Company with vouchers or other evidence of actual payment of
such expenses.
8. CAR
The Director will receive a non pensionable cash car allowance of
(pound)12,600 per annum.
9. HOURS OF WORK/HOLIDAY
9.1 The Director shall perform such hours of work as may from time to time be
reasonably required of him and shall not be entitled to receive any
additional remuneration for work outside his normal hours which said
normal hours shall for statutory purposes be deemed to be from 9.00 am to
5.30 pm Monday to Thursday inclusive and 9.00 am to 4.15 pm on Friday.
9.2 The Director shall be entitled during every calendar year to a minimum of
thirty (30) working days holiday in addition to bank or public holidays in
the UK, or to such longer holidays as shall from time to time be agreed by
the Board, during which his remuneration hereunder shall continue to be
payable. Holidays shall be taken at such times as the Director and the
Company's Chief Executive Officer shall consider most convenient having
regard to the requirements of the Company's business. Holiday entitlement
during the calendar year in which the Director's employment commences and
ceases will be based on his length of service in the calendar year in
question and will be proportionate to the whole year's entitlement. Up to
five days holiday may be carried forward to the next holiday year but no
further. On termination of employment the Director will be made a payment
in respect of accrued but untaken holiday for that holiday year.
10. SICKNESS/INJURY
10.1 In the event that the Director shall at any time be prevented by illness
or other incapacity from properly performing his duties hereunder (and
shall if required furnish the Board with evidence satisfactory to them of
such incapacity) he shall be entitled to receive his full salary for the
first six (6) months and one half of his full salary for the next
consecutive period of six (6) months during which such incapacity shall
continue;
10.2 Any salary received by the Director pursuant to the foregoing Clause 10.1
shall be inclusive of any payment which the Company is required to make in
respect of Statutory Sick Pay. The Director shall keep the Company
informed of the amount of any National Health Insurance sickness or injury
benefits to which he is entitled (whether or not these are received) and
which are not covered by Statutory Sick Pay and a deduction of the amount
of such benefit will be made by the Company from any salary payable under
the Clause 10.1;
10.3 Notwithstanding the provisions of Clause 2.2 of this Agreement, if the
Director shall continue so incapacitated for a longer period than twelve
(12) consecutive months or if he shall be so incapacitated at different
times for more than twelve (12) months in any one period of eighteen (18)
consecutive months then and in either of such cases the Company shall be
entitled forthwith to terminate the engagement of the Director by notice
in writing and thereupon the Director shall have no claim against the
Company in respect of such termination. The length of the said notice to
be given to the Director hereunder shall be the minimum period permitted
by statute and dependent upon his length of service. The Company may not
exercise its power to terminate the engagement of the Director under this
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clause 10.3 if the Director is, at the relevant time, in receipt of
benefits under the income protection cover referred to in clause 11.4
below.
11. PENSION/LIFE INSURANCE/MEDICAL INSURANCE
11.1 The Director shall be informed in writing whether a contracting out
certificate is in force in respect of the employment of the Director.
11.2 The Director shall be entitled to receive a total monthly contribution
payable by the Company into one or more appropriate pension schemes
established by the Company, or into a personal pension scheme nominated by
the Director, at a rate of 19% of a basic salary variable upwards by
decision of the Board. Alternatively, at the Director's option and on such
terms as may be agreed with the Company, the Company shall pay the
Director an additional monthly cash allowance in lieu of all or part of
any pension contributions by the Company less tax and National Insurance,
provided this does not result in any additional cost to the Company. For
the avoidance of doubt, this allowance shall not be taken into account in
relation to the calculation of any salary related benefits.
11.3 While this Agreement continues a lump sum benefit shall be payable on the
Director's death to such beneficiaries identified by the Director in any
expression of his wishes delivered to the Company before his death. The
benefit is equal to four times the Director's basic annual salary at his
death.
11.4 The Director (and his spouse and dependant children living in the UK)
shall be entitled to receive private health care. The Director shall also
be entitled to income protection cover equivalent to 3/4 of basic salary
(minus the State Incapacity Benefit). These benefits will be subject to
the terms of the insurance or other arrangements under which the benefits
are provided.
12. GRIEVANCES/DISCIPLINARY DECISIONS
Without prejudice to any rights he may have under this Agreement or
operation of law should the Director have any question or grievance or be
dissatisfied with any disciplinary decision concerning his employment
hereunder, he should refer it to the Board whose decision shall be final
and binding.
13. CONFIDENTIALITY
13.1 In respect of Confidential Information of the Company or any Subsidiary or
Associated Company, the Director will not, unless authorised to do so by
the Board or by the Company's Chief Executive Officer or by a Court of
competent jurisdiction, during the continuance of his employment or for a
period of five (5) years thereafter:
(a) use Confidential Information for his own benefit or the benefit of
any other person; or
(b) disclose Confidential Information to any person; or
(c) through any failure to exercise all reasonable care and diligence
cause any disclosure of Confidential Information to any person.
13.2 Confidential Information shall include any information relating to
research and development projects, inventions, processes, practical
experience and methodology, technical and scientific data, specifications
and formulae (whether or not patented or patentable) developed or acquired
and owned or used by the Company any Subsidiary or Associated Company for
the
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subject of research, production programmes, lists or details of
transactions of, or related to, the Company any Subsidiary or Associated
Company with customers, commercial relationships (including collaboration
agreements) of, or related to, the Company any Subsidiary or Associated
Company, finances, business developments and future business strategy of,
or related to, the Company any Subsidiary or Associated Company which the
Company has designated as confidential from time to time. Confidential
Information shall not include information which is in the public domain
otherwise than by virtue of breach of obligations to the Company or any
Subsidiary or Associated Company.
13.3 The Company may from time to time notify the Director of any additional
categories of information with regard to the businesses or activities of
the Company, Subsidiary or Associated Company which it regards as
confidential and which will be the subject to the restrictions in this
Clause.
14. PROTECTION OF INTERESTS OF THE COMPANY
14.1 Until the expiration of 12 months from the termination of the Agreement
the Director will not directly or indirectly solicit or entice away or
endeavour to entice away from the Company, any Subsidiary or Associated
Company any person employed by the Company or that Subsidiary or
Associated Company in any executive, sales, marketing, research, or
technical support capacity as at the date of the termination of this
Agreement in order to procure that such a person be engaged or employed by
any other company.
14.2 After the termination of this Agreement or, if later, the date of his
ceasing to be a Director of the Company, the Director will not represent
himself or permit himself to be held out as being in any way connected
with or interested in the business of the Company; and after the
termination of this Agreement he will not represent himself or permit
himself to be held out as being in any way connected with the business of
any Subsidiary or Associated Company, except if and for so long as he
remains a director or an employee of that Subsidiary or Associated
Company.
15. INVENTIONS
15.1 If at any time during the continuance of his employment the Director
whether alone or with any other person, makes, discovers or develops any
invention, product, process or idea which relates to or affects, or is
capable of being used or adapted for use in or in connection with, the
business or any product, process or intellectual property right of the
Company or any Subsidiary or Associated Company, the invention, product,
process, or idea will be the absolute property of the Company (except to
the extent, if any, provided otherwise by Section 39 of the Patents Act
1977).
15.2 The Director will promptly and fully disclose to the Company any and all
inventions, products, processes, and ideas relating in any way to the
actual or projected products, business or affairs of the Company or any
Subsidiary or Associated Company and made or discovered wholly or partly
by the Director during the period of the Director's employment by the
Company.
15.3 All other intellectual property including original work, industrial and
artistic designs, copyrights, trade marks and Confidential Information,
relating to the business of the Company, any Subsidiary or Associated
Company composed, written, made, designed, or discovered by the Director
in the course of his employment with the Company shall belong, exclusively
to the Company.
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15.4 The Director will, at the request and expense of the Company, do all
things and sign all documents deemed by the Company necessary or
appropriate:
(a) to confirm or vest in the Company or any nominee of the Company all
rights, interest and title in and to the Company's inventions and
the intellectual property referred to in Clause 15.3;
(b) to procure for the Company or its nominees, patent, design,
copyright, trade xxxx or other protection for the Company's
inventions and the intellectual property referred to in Clause 15.3
in the United Kingdom of Great Britain and Northern Ireland and in
such territories as the Company may in its absolute discretion from
time to time direct; and
(c) to assign to the Company or its nominees the right to make
application for patent, design, copyright, trade xxxx or other
protection for the Company's inventions and the intellectual
property referred to in Clause 15.3 under the laws of territories
outside the United Kingdom of Great Britain and Northern Ireland
and/or under any treaty or international convention and to claim for
such applications whatever priority rights may be lawful.
15.5 Except insofar as the provisions of the Patents Xxx 0000 apply, the
Director's employment by the Company and the remuneration received as one
of its employees shall constitute his sole right of compensation for the
performance of his obligations herein contained.
15.6 If the Director ceases to be employed by the Company and enters the
employment of any Associated Company or of any company which purchases the
whole or part of any of the businesses of the Company or any such
Associated Company, the Company may assign its rights under this Clause to
such Associated Company or purchaser in which event Clauses 15.1 to 15.7
of this Agreement shall (save for the enforcement by the previous employer
of its rights hereunder) thenceforth be construed as if the expression the
Company means such new employer.
15.7 There are no inventions or discoveries now owned wholly or partly by the
Director which were made at a time when the Director was not employed by
the Company, other than as disclosed in writing to the Company.
16. PUBLICITY
The Director shall not knowingly or recklessly at any time make any untrue
statement in relation to the Company or any Subsidiary or Associated
Companies and in particular shall not after the termination of this
Agreement wrongfully represent himself as being employed by or connected
with the Company or any Subsidiary or Associated Companies.
17. LIQUIDATION/AMALGAMATION
If before the expiration of this Agreement the employment of the Director
hereunder shall be terminated by reason of the liquidation of the Company
for the purpose of amalgamation or reconstruction or as part of any
arrangement for the amalgamation of the undertaking of the Company not
involving liquidation the Director shall be offered employment with the
amalgamated or reconstructed company on terms not less favourable than the
terms of this Agreement.
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18. DEFAULT
If the Director shall be guilty of any serious misconduct or any serious
or (after due warning) persistent breach or non-observance of any of the
conditions of this Agreement or shall neglect fail or refuse to carry out
the duties properly assigned to him hereunder or shall become bankrupt or
compound with his creditors, the Company shall be entitled summarily to
terminate his employment hereunder without notice and the Director shall
have no claim against the Company in respect of such termination
notwithstanding anything contained elsewhere in this Agreement provided
always that if any such act of misconduct or such breach or non-observance
is capable of being remedied, the Director shall first be offered a
reasonable opportunity to remedy the same prior to termination as
aforesaid and, if and when so remedied, the employment of the Director
hereunder shall continue without interruption.
19. TERMINATION
19.1 This Agreement may be terminated by mutual agreement between the parties
at any time or by either party giving 12 months notice in writing to the
other.
19.2 On the termination of his employment for whatever reason the Director will
promptly:
(a) resign (if he has not already done so) from all offices held by him
in the Company and any Subsidiaries or Associated Companies; and
(b) deliver up to the Company all technical information, lists of
customers, correspondence, documents and other property (including
any car) relating to the business of the Company, any Subsidiary or
Associated Company which may be in his possession or under his
control; and
(c) The Director irrevocably authorises the Company in his name and on
his behalf to execute all documents and to all things necessary to
effect the resignations referred to in Clause 19.2 in the event of
his failure to do so.
19.3 Any termination of the employment of the Director will be without
prejudice to his continuing obligations under this Agreement.
19.4 The Company has the right to suspend any of the Director's duties and
powers during any period after notice of termination of the Agreement has
been given by the Company or the Director. In particular, the Company may
exercise this right where the Director resigns from the Company's
employment in circumstances where it is reasonable for the Company to
believe that he is or is about to become concerned in, or about to
commence, a business which is, or is likely to be, competitive with any
part of the business of the Company or any Associated or Subsidiary
Company with which the Director was substantially engaged or concerned in
the 12 months before the suspension started. Throughout any such period of
suspension the Director's salary, pro rata bonus at a rate equivalent to
the average bonus paid to him over the past three years and benefits to
which he is entitled under this Agreement shall continue to be paid or
provided by the Company. At any time during such period the Director will,
at the request of the Board, immediately resign, without claim for
compensation, his office as a director of the Company and any directorship
or other office held by him in the Company or any Associated or Subsidiary
Company. The period for which the restriction in Clause 14.1 applies shall
be reduced by any other period over which the Company exercises its powers
to suspend any of the Director's duties and powers under Clause 19.4.
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20. CHANGE OF CONTROL
20.1 The Director shall be entitled at any time within six months after a
Change in Control of the Company to terminate his employment by giving to
the Company not less than 30 days prior notice in writing. Upon such
termination or upon termination without notice by the Company during such
six month period the Director shall be entitled to receive a payment
forthwith by way of liquidated damages equal to 12 (twelve) times the
Director's then monthly basic salary. The parties hereto agree that the
sum set out in this sub-clause is a genuine pre-estimate of the Director's
loss.
20.2 For the purposes of Clause 20.1 "Change of Control" of the Company shall
take place on the date on which one person or a group of persons acting in
concert holds, directly or indirectly, any shares in the Company which
carry fifty per cent (50%) or more of the then voting rights of the
Company and a Change of Control shall be deemed to have taken place upon
Completion.
21. ADDITIONAL PARTICULARS
The following additional particulars are given for the purposes of the
Employment Rights Xxx 0000:
(a) except as otherwise provided by this Agreement, there are no terms
or conditions of employment relating to hours of work or to normal
working hours or to entitlement to holidays (including public
holidays) or holiday pay or to incapacity for work due to sickness
or injury or to pensions or pension schemes.
22. TERM AND TERMINATION
This Agreement shall remain in full force and effect until such time as
the Director's employment by the Company as defined in Clause 2.1 shall
terminate for any reason, whereupon this Agreement will terminate.
23. CONTINUING TERMS
The expiration or determination of this Agreement howsoever arising shall
not operate to affect such of the provisions hereof as in accordance with
their terms are expressed to operate or have effect thereafter and shall
be without prejudice to any right or action already accrued to either
party in respect of any breach of this Agreement by the other party.
24. NOTICES
Any notice to be given hereunder shall be in writing and be sufficiently
served, in the case of the Director, by being delivered either personally
to him or sent by registered post addressed to him at his usual or last
known place of abode or, in the case of the Company, by being delivered at
or sent by registered post or recorded delivery addressed to the Company's
Chief Executive Officer at the Company's Registered Office and any such
notice if so posted shall be deemed served three days following that on
which it was posted and in proving such service it shall be sufficient to
prove that the notice was properly addressed and dispatched.
25. ENTIRE AGREEMENT
The terms of this Agreement constitute the entire agreement and
understanding between the parties hereto.
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IN WITNESS whereof the parties hereto have executed this Agreement as a Deed the
day and year first above written.
VERNALIS PLC )
executed this Agreement as a )
Deed in the presence of: )
Director /s/ Xxxxx Xxxxxx
Director /s/ X X Xxxx
Executed as a Deed by )
XXXX XXXXXX ) /s/ XXX Xxxxxx
in the presence of: )
/s/ A January
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