EXHIBIT 10.34
SERVICE AGREEMENT
(1) Visible Genetics UK Limited
(2) Xxxxxxx Xxxxxx
Dated 2001
XXXXXXX XXXXXX
BRISTOL OFFICE
00 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxxxx XX0 0XX
Telephone 0000 000 0000 Facsimile 0117 917 3005
LONDON OFFICE
Xxxxxxxx Xxxxx, 00 Xxx Xxxxxx, Xxxxxx XX0X 0XX
Telephone 000 0000 0000 Facsimile 020 7809 1005
XXXXXX XXXXXX XXXXXX
Xxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxx XX0 0XX
Telephone 0000 000 0000 Facsimile 0118 925 0038
WEB SITE: xxx.xxxxxxxxxxxxx.xxx
CONTENTS
1. Definitions and interpretation...........................................................1
2. Appointment..............................................................................6
3. Term.....................................................................................6
4. Duties of the Executive..................................................................7
5. Hours of work............................................................................8
6. Principal place of work..................................................................8
7. Salary...................................................................................8
8. Expenses.................................................................................9
9. Benefits.................................................................................9
10. Holidays...............................................................................10
11. Sickness or injury.....................................................................11
12. Termination of and suspension from Employment..........................................12
13. Obligations during Employment..........................................................14
14. Obligations after Employment...........................................................18
15. Disciplinary and Grievance procedure...................................................20
16. Collective Agreements..................................................................20
17. Deductions.............................................................................20
18. Entire Agreement.......................................................................20
19. Third Parties..........................................................................20
20. Data Protection........................................................................20
21. Releases and waivers...................................................................21
22. Notices................................................................................21
23. Governing law and jurisdiction.........................................................21
Schedule 1.................................................................................22
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THIS AGREEMENT is made the day of 2001
BETWEEN:
(1) VISIBLE GENETICS UK LIMITED (company number: 04076100) whose registered
office is at 00/00 Xxxxxxx Xxx, Xxxxxx XX0X 0XX ("THE COMPANY"); and
(2) XXXXXXX XXXXXX of Monona, 0 Xxxxxx Xxxx, Xxxxxx Xxxxxxxx XX0 0XX ("THE
EXECUTIVE").
IT IS AGREED as follows:
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires, the following
expressions have the following meanings:
"AGREEMENT" This Agreement (including any schedule or annexure
to it and any document referred to in it or in
agreed form);
"BOARD" The board of directors of the Company and/or any
Group Companies from time to time and includes any
committee of the Board duly appointed by it;
"BUSINESSES" The development, manufacture and marketing of
automated DNA sequencing systems and related
diagnostic tests/kits for the analysis of DNA and
any other trade or commercial activity which is
carried on by any Group Company, or which any
Group Company shall have determined to carry on
with a view to profit in the immediate or
foreseeable future;
"CHIEF EXECUTIVE Any person holding office as Chief Executive
OFFICER" Officer of Visible Genetics Inc (the parent
company of the Company) from time to time,
including any person exercising substantially the
functions of a chief executive officer of the
parent company;
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"COMPANY INVENTION" Any improvement, invention or discovery made by
the Executive which in accordance with Section 39,
Patents Xxx 0000 is the property of the Company;
"CONFIDENTIAL Any trade secrets or other information which is
INFORMATION" confidential, commercially sensitive and is not in
the public domain relating or belonging to the
Company or any Group Company including but not
limited to information relating to the business
methods, corporate plans, management systems,
finances, new business opportunities, research
and development projects, marketing or sales of
any past, present or future product or service,
secret formulae, processes, inventions, designs,
know-how discoveries, technical specifications
and other technical information relating to the
creation, production or supply of any past,
present or future product or service of the
Company or any Group Company, lists or details of
clients, potential clients or suppliers or the
arrangements made with any client or supplier and
any information in respect of which any Group
Company owes an obligation of confidentiality to
any third party;
"CUSTOMER" any person with whom or which the Executive has
dealt or of whom or of which he has knowledge by
virtue of his Duties in the 6 months preceding the
Termination Date and to whom or which the Company
or any Group Company shall at any time during the
period of 6 months prior to the Termination Date
have supplied any Restricted Products or
Restricted Services.
"DUTIES" The duties of the Executive as set out in clause
4;
"EMPLOYMENT" The period of the Executive's employment under
this Agreement;
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"GROUP COMPANIES" The Company, its subsidiaries or subsidiary
undertakings, any holding company or parent
undertaking and any subsidiary or subsidiary
undertaking of any holding company or parent
undertaking and "GROUP COMPANY" means any of them;
"MATERIAL INTEREST" (a) the holding of any position (whether employed
or engaged) or provision of services as
director, officer, employee, consultant,
adviser, partner, principal, agent or
volunteer;
(b) the direct or indirect control or ownership
(whether jointly or alone) of any shares (or
any voting rights attached to them) or
debentures save for the ownership for
investment purposes only of not more than 5
per cent of the issued ordinary shares of any
company whose shares are listed on any
Relevant Exchange; or
(c) the direct or indirect provision of any
financial assistance;
"RELEVANT means a Recognised Investment Exchange as defined
EXCHANGE" in Section 207, Financial Services Xxx 0000 or the
Alternative Investment Market of the London
Stock Exchange or any similar or comparable
exchange or market;
"RESTRICTED any territory in which the Company or any Group
AREA" Company shall carry on the Businesses at the
Termination Date;
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"RESTRICTED Any products of a kind which have been dealt in,
PRODUCTS" produced, marketed or sold by the Company or any
Group Company in the ordinary course of the
Businesses at any time during the 12 months
preceding the Termination Date and in respect of
which or the marketing of which the Executive's
Duties were directly concerned or for which the
Executive was responsible during such period or in
relation to which the Executive possesses
Confidential Information at the Termination Date;
"RESTRICTED PROPOSED Any products which are, at the Termination Date,
PRODUCTS" proposed to be dealt in, produced, marketed or
sold by the Company or any Group Company at any
time during the 12 months following the
Termination Date and in respect of which or the
marketing of which the Executive's Duties were
directly concerned or for which the Executive was
responsible during such period or in relation to
which the Executive possesses Confidential
Information at the Termination Date.
"RESTRICTED PROPOSED Any services which are, at the Termination
SERVICES" Date, proposed to be provided by the Company or
any Group Company at any time during the 12 months
following the Termination Date and in respect of
which or the marketing of which the Executive's
Duties were directly concerned or for which the
Executive was responsible during such period or in
relation to which the Executive possesses
Confidential Information at the Termination Date;
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"RESTRICTED SERVICES" any services of a kind which have been provided by
the Company or any Group Company in the ordinary
course of the Businesses at any time during the 12
months preceding the Termination Date and in
respect of which or the marketing of which the
Executive's Duties were directly concerned or for
which the Executive was responsible during such
period or in relation to which the Executive
possesses Confidential Information at the
Termination Date;
"RESTRICTED the direct or indirect control or ownership
SHAREHOLDING" (whether jointly or alone) of shares in a company
which, together with shares held by any person
acting in concert with him carry 25% or more of
the voting rights of that company;
"RESTRICTED SUPPLIES" any goods or services supplied to the Company or
any Group Company on terms which as to the nature
of the supplies and/or the terms of supply are
unique to the relationship between the supplier
and the relevant Group Company and in respect of
which or the marketing of which the Executive's
Duties were directly concerned or for which the
Executive was responsible during such period or in
relation to which the Executive possesses
Confidential Information at the Termination Date;
"SUPPLIER" any person with whom the Executive has dealt or of
whom or of which the Executive has knowledge by
virtue of the Duties in the 12 months preceding
the Termination Date and who has during that
period provided Restricted Supplies to the Company
or any Group Company; and.
"TERMINATION DATE" the date on which the Employment terminates;
"VISIBLE GENETICS INC" the parent company of the Company.
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1.2 In this Agreement, unless the context otherwise requires:
(a) words in the singular include the plural and vice versa and words in
one gender include any other gender;
(b) a reference to a statute or statutory provision includes:
(i) any subordinate legislation (as defined in Section 21(1),
Interpretation Act 1978) made under it; and
(ii) any statute or statutory provision which modifies,
consolidates, re-enacts or supersedes it;
(c) a reference to:
(i) a "PERSON" includes any individual, firm, body corporate,
association or partnership, government or state (whether or
not having a separate legal personality);
(ii) clauses and schedules are to clauses and schedules of this
Agreement and references to sub-clauses and paragraphs are
references to sub-clauses and paragraphs of the clause or
schedule in which they appear;
(d) the table of contents and headings are for convenience only and
shall not affect the interpretation of this Agreement.
2. APPOINTMENT
2.1 The Company appoints the Executive and the Executive agrees to serve as
Chief Scientific Officer of the Company on the terms set out in this
Agreement. In this capacity, and in accordance with clause 4.3 below, the
Executive shall also undertake duties as Chief Scientific Officer on
behalf of
Visible Genetics Inc.
2.2 The Executive warrants that the Executive is free to enter into this
Agreement and is not bound by, nor subject to any court order,
arrangement, obligation, restriction or undertaking (contractual or
otherwise) which prohibits or restricts the Executive from entering into
this Agreement or performing the Duties.
3. TERM
3.1 The Executive's employment under the terms of this Agreement commenced on
13 September 2001 and, unless terminated in accordance with clause 12,
shall continue until terminated by:
(a) the Company giving to the Executive not less than 12 months' prior
written notice at any time up until 25 June 2003. Thereafter, the
Company shall give to the Executive not less
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than 12 months' prior written notice plus an additional one month's
notice for each full year worked beyond 25 June 2003; or
(b) the Executive giving to the Company not less than 6 months' prior
written notice.
3.2 The Executive's continuous period of employment with the Company
commenced on 25 June 2001.
4. DUTIES OF THE EXECUTIVE
4.1 The Executive shall carry out such duties as may attach to the
Executive's office or be assigned to or vested in the Executive by the
Chief Executive Officer and/or the Board from time to time (whether or
not commensurate with his position) and exercise the powers consistent
with such duties.
4.2 At all times during the Employment the Executive shall:
(a) unless prevented by ill health and except during holidays taken in
accordance with this Agreement, devote the whole of the Executive's
working time and attention to the Employment, save that the
Executive shall from time to time engage in limited consulting work
(for example, speaking at conferences) provided that such activities
are disclosed to the Chief Executive Officer, do not interfere with
the Executive's duties and responsibilities and the compensation for
such activities does not exceed L15,000 per annum;
(b) perform the Duties faithfully and diligently;
(c) obey all lawful and reasonable directions of the Chief Executive
Officer and the Board, observe such restrictions or limitations as
may from time to time be imposed by the Chief Executive Officer and
the Board upon the Executive's performance of the Duties and
implement and abide by any relevant Company policy which may be
promulgated or operated in practice from time to time;
(d) use best endeavours to promote the interests of the Company and
shall not do or willingly permit to be done anything which is
harmful to those interests; and
(e) keep the Chief Executive Officer and the Board fully informed (in
writing if so requested) of the Executive's conduct of the business
or affairs of the Company and provide such explanations as the Chief
Executive Officer and the Board may require.
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4.3 The Executive shall (without further remuneration and in addition to the
Executive's duties to the Company) if and for so long as the Company
requires during the Employment:
(a) carry out any duties assigned to the Executive in relation to any
Group Company; and
(b) act as an officer of any Group Company or hold any other appointment
or office as nominee or representative of any Group Company;
in each case as if they were to be performed or held by the Executive for
or in relation to the Company.
5. HOURS OF WORK
5.1 The Executive's hours of work shall be the Company's normal office hours
of 9.00 a.m. to 5.30 p.m. Monday to Friday and such further hours as may
be necessary for the proper discharge of the Duties. The Executive shall
not be entitled to receive any additional remuneration for work outside
the Company's normal office hours.
5.2 The Executive acknowledges that he may be required to work in excess of
an average of 48 hours in any one period of 7 calendar days if so
requested by the Company and consents to do so. The Executive may
withdraw such consent by giving not less than 3 months' prior notice in
writing to the Company of such withdrawal.
6. PRINCIPAL PLACE OF WORK
6.1 The Executive's principal place of work shall be at 000 Xxxxxxxxx Xxxxxxx
Xxxx, Xxxxxx Xxxx, Xxxxxxxxx XX0 0XX.
6.2 The Executive shall travel to and work on a temporary basis from such
locations within the UK and abroad as the Board may reasonably require
for the performance of his Duties.
6.3 There is no current requirement, as at the date of this agreement, for
the Executive to work outside the United Kingdom for any consecutive
period of one month or more.
7. SALARY AND BONUS
7.1 During the Employment the Company shall pay to the Executive a basic
salary at the rate of L137,500 per annum. This salary shall accrue from
day to day, be payable by equal monthly instalments in arrears on or
about the last day of each month and shall include any fees to which the
Executive is entitled as a director of any Group Company.
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7.2 The Executive's basic salary shall be subject to annual review by the
Chief Executive Officer. Any increase in the Executive's basic salary
consequent upon such review will be effective from the effective date
specified by the Board.
7.3 The Executive will be entitled to participate in any bonus scheme
applicable to employees of the Executive's status as
Visible Genetics Inc
may operate from time to time, subject to the terms and conditions of any
such scheme. The bonus scheme as at the date of this Agreement is set out
at Schedule 1 to this Agreement.
Visible Genetics Inc reserve the right
to amend the terms of the current bonus scheme.
8. EXPENSES
The Company shall reimburse to the Executive all expenses reasonably and
properly incurred by the Executive in the performance of the Duties
subject to the production of such receipts or other evidence of
expenditure as the Company may reasonably require.
9. BENEFITS
9.1 MOTOR CAR
(a) Subject to the Executive holding a licence to drive a car in the
United Kingdom, the Company shall provide the Executive with a car
of a type appropriate (in the opinion of the Chief Executive
Officer) to the Executive's position in the Company for the use of
the Executive.
(b) The Company shall bear all tax, insurance, maintenance, repair and
running costs of the car.
(c) The Executive shall at all times maintain the car in a good and
roadworthy condition, ensure that the conditions of any policy of
insurance relating to it are observed and comply with all
regulations laid down by the Company with respect to Company cars.
(d) The Executive shall return the car in a clean and proper condition
together with its keys, registration papers, car alarms, car alarm
codes, accessories and any Company credit or cheque card provided to
the Executive exclusively for the purchase of fuel to the Company at
any time during the Employment on demand and in any event
immediately upon the Termination Date.
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9.2 PENSION
(a) Subject to Inland Revenue limits, the Company shall, in each year of
the Employment, contribute a sum equivalent to 20% of the
Executive's basic salary into a personal pension plan of the
Executive's choice. Such payments to be calculated and paid on a
monthly basis so that in the year of joining and leaving, the amount
of such contribution shall be reduced pro rata for each complete
calendar month not worked. In the event that Inland Revenue limits
prevent the full payment (or any part-payment) of this benefit into
the Executive's pension plan the Company shall pay the balance of
the sum payable direct to the Executive (subject to deduction of
income tax and national insurance as appropriate).
(b) No contracting-out certificate pursuant to the Xxxxxxx Xxxxxxx Xxx
0000 is in force in respect of the Employment.
9.3 INSURANCE BENEFITS
Subject to sub-clause 12.4(a), the Executive shall be eligible to
participate in such of the following insurance schemes as the Company may
operate from time to time, subject always to the rules of the relevant
scheme:
(a) permanent health insurance scheme providing long term disability
cover for the Executive;
(b) private medical expenses insurance scheme providing cover for the
Executive; and
(c) death in service insurance scheme providing life insurance cover
equivalent to 4 times the Executive's basic salary.
Details of the Company's current insurance schemes are available from the
Company Secretary. The Company shall pay all premiums in respect of the
schemes and may, in its absolute discretion, vary their terms and details
from time to time.
9.4 OTHER BENEFITS
Any other benefit provided to the Executive shall unless otherwise agreed
in writing be at the discretion of the Company who may, at any time,
withdraw or vary the terms of such benefit as it sees fit.
10. HOLIDAYS
10.1 The Company's holiday year runs from 1 January to 31 December.
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10.2 In addition to public or bank holidays, the Executive is entitled to 25
working days' paid holiday in each holiday year, to be taken at such time
or times as are agreed with the Chief Executive Officer.
10.3 The Executive may not, without the consent of the Chief Executive Officer
carry forward any unused part of the holiday entitlement to a subsequent
holiday year. Except on termination of employment, no payment will be
made in lieu of any unused holiday entitlement.
10.4 For the holiday year during which the Employment commences or terminates,
the Executive's entitlement to holiday accrues on a pro rata basis for
each complete month of the Employment during that holiday year.
10.5 On termination of the Employment the Executive shall be entitled to pay
in lieu of any outstanding holiday entitlement and shall be required to
repay to the Company any salary received for holiday taken in excess of
his actual entitlement. The basis for calculating the payment and
repayment shall be 1/365 of the Executive's annual basic salary for each
day. For the purposes of the calculation of the payment and repayment the
amount of the Executive's outstanding or overtaken holiday entitlement
shall be grossed up as appropriate to the nearest half day to take
account of any non working days falling within the Executive's normal
working week.
10.6 The Company may require the Executive to take any outstanding accrued
holiday during a period of notice of termination of the Employment.
11. SICKNESS OR INJURY
11.1 If unable to perform the Duties due to sickness or injury the Executive
shall report this fact as soon as possible on the first working day of
incapacity to the Company Secretary, and provide, so far as practicable,
an expected date of return to work.
11.2 To be eligible for sick pay under sub-clause 11.3, the Executive must
supply the Company with such certification of sickness or injury as the
Company may require.
11.3 If the Executive shall be absent due to sickness or injury duly certified
in accordance with the Company's requirements the Executive shall be paid
full basic salary for up to 8 weeks' absence in any period of 12
consecutive months and after that, subject to sub-clause 11.4, such
remuneration, if any, as the Chief Executive Officer shall determine from
time to time.
11.4 Any remuneration paid under sub-clause 11.3 shall be inclusive of any
Statutory Sick Pay to which the Executive is entitled or other benefits
recoverable by the Executive (whether or not recovered) which may be
11
deducted from it.
11.5 Any outstanding or prospective entitlement to company sick pay in
accordance with sub-clause 11.3, private medical insurance benefits or
permanent health insurance benefits shall not prevent the Company from
exercising its right to terminate the Employment in accordance with
sub-clause 12.4 nor shall the Company be liable to compensate the
Executive in respect of any such pay or benefit provided that the Company
shall not exercise this right where this would deprive the Executive of
any permanent health insurance benefit provided under this Agreement to
which he would otherwise be entitled.
11.6 If the Executive's sickness, injury or other incapacity is caused by the
negligence or breach of statutory duty of a third party and the Executive
shall recover any damages or other compensation from such third party for
the Executive's loss of earnings whilst incapacitated, the Executive
shall repay to the Company the amount of any sick pay paid by the Company
to the Executive under sub-clause 11.3 or, if less, the full amount of
the damages or compensation received for loss of earnings by the
Executive.
11.7 If at any time during the Employment, in the reasonable opinion of the
Board, the Executive is unable to perform all or part of the Duties
because of sickness or injury then the Executive shall, at the request
and expense of the Company:
(a) consent to an examination by a doctor to be selected by the Company
and approved by the Executive; and
(b) authorise this doctor to disclose to and discuss with the Company's
medical adviser, or other nominated officer of the Company, the
results of or any matter arising out of this examination.
11.8 The Company shall be entitled to rely on the reasonable opinion of any
doctor engaged by the Company to examine the Executive under sub-clause
11.7 as to the Executive's fitness for work. The Executive shall not be
entitled to attend for work at any time when such doctor considers him to
be unfit for work and shall not be entitled to receive any remuneration
in excess of any sick pay to which he remains entitled under sub-clause
11.3 during any such period.
12. TERMINATION OF AND SUSPENSION FROM EMPLOYMENT
12.1 IMMEDIATE DISMISSAL
The Company may by written notice terminate the Employment without notice
or pay in lieu of notice if the Executive:
(a) commits a breach of the terms and conditions of this
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Agreement amounting to gross misconduct;
(b) repeats or continues after a written warning any material breach of
the terms and conditions of this agreement, including any failure to
carry out the Duties efficiently, diligently or competently;
(c) commits any act of gross misconduct or is guilty of any conduct
which may in the reasonable opinion of the Board, bring any Group
Company into disrepute or is calculated or likely prejudicially to
affect the interests of any Group Company, whether or not the
conduct occurs during or in the context of the Employment;
(d) is convicted of any criminal offence punishable with 6 months' or
more imprisonment (other than an offence under road traffic
legislation in the United Kingdom or elsewhere for which he is not
sentenced to any term of imprisonment whether immediate or
suspended);
(e) commits any act of dishonesty relating to any Group Company, any of
its employees or otherwise;
(f) becomes of unsound mind or a patient within the meaning of the
Mental Health Xxx 0000 so that in the opinion of the Board he is
unable to perform the Duties; or
(g)
12.2 RETIREMENT
The Employment shall automatically terminate when the Executive reaches
the age of 65.
12.3 SUSPENSION
In order to investigate a complaint against the Executive of misconduct
the Company may suspend the Executive on full pay for so long as may be
necessary to carry out a proper investigation and hold any appropriate
disciplinary hearing.
12.4 DISMISSAL DUE TO SICKNESS OR INJURY
(a) Notwithstanding sub-clauses 9.3 and 11.3, if the Executive is
incapable of performing the Duties due to sickness or injury for a
period or periods aggregating at least 180 days in any period of 12
months the Company may, by not less than 6 months' prior written
notice given at any time whilst such incapacity continues, terminate
the Employment.
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(b) Upon termination of the Employment under this sub-clause the
Executive shall cease to be entitled to any payment under sub-clause
11.3 or any other provision of this Agreement.
12.5 PAY IN LIEU
On the service of notice to terminate the Employment by the Executive or
the Company or at any time during the currency of such notice, the
Company shall have the right to terminate the Employment with immediate
effect by notifying the Executive in writing that the Employment is being
terminated pursuant to this clause and paying to the Executive a sum
equivalent to the Executive's basic salary (excluding bonus), pension
contributions and an amount equal to the value of any benefits in kind
for the unexpired portion of the Executive's contractual notice
entitlement. The Company will pay the sum due and payable under this
sub-clause subject to deduction of tax and national insurance
contributions at source.
12.6 EFFECT OF TERMINATION
(a) On the Termination Date or (if earlier) at any time after notice is
given by the Company or the Executive to terminate the Employment,
the Executive shall, at the request of the Board:
(i) resign (without prejudice to any claims which he may have
against any Group Company arising out of the Employment or
its termination) from all and any offices which he may hold
as a director of any Group Company and from all other
appointments or offices which he holds as nominee or
representative of any Group Company; and
(ii) transfer without payment to the Company or as the Company
may direct any shares held by him for the purposes only of
fulfilling any requirement in the Company's articles of
association that a director holds shares in the Company and
any shares in any Group Company held by him on trust for the
Company or any Group Company.
(b) If the Executive should fail to comply with any obligation under
sub-clause (a) within 7 days of the Company's request, the Company
is irrevocably authorised to appoint some person in his name and on
his behalf to sign any documents or do any things necessary or
requisite to effect such resignation(s) and/or transfer(s).
13. OBLIGATIONS DURING EMPLOYMENT
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13.1 INVENTIONS
(a) The Executive shall promptly disclose to the Company full details
including, without limitation, any and all computer programs,
photographs, plans, records, drawings and models, of any know-how,
technique, process, improvement, invention or discovery (whether
patentable or not) which the Executive (whether alone or with any
other person) makes, conceives, creates, develops, writes, devises
or acquires at any time during the Employment and which relates or
which could relate, directly or indirectly, to the Businesses.
(b) If the know-how, technique, process, improvement, invention or
discovery is a Company Invention, the Executive shall (to the extent
that it does not automatically vest in the Company by operation of
law) hold it in trust for the Company and, at the request and
expense of the Company, do all things necessary or desirable
(including entering into any agreement that the Company reasonably
requires) to enable the Company or its nominee to obtain for itself
the full benefit of and to secure patent or other appropriate forms
of protection for the Company Invention throughout the world.
(c) If the know-how, technique, process, improvement, invention or
discovery is not a Company Invention, the Company shall treat all
information disclosed to it by the Executive as confidential
property of the Executive.
(d) The patenting and exploitation of any Company Invention shall be at
the sole discretion of the Company.
13.2 COPYRIGHT ETC
(a) The Executive shall promptly disclose to the Company all works
including, without limitation, all copyright works or designs
originated, conceived, developed, written or made by the Executive
alone or with others during the Employment which relate, or could
relate, to the Businesses and shall (to the extent that they do not
automatically vest in the Company by operation of law) hold them in
trust for the Company until such rights have been fully and
absolutely vested in the Company.
(b) The Executive assigns to the Company by way of present and future
assignment (to the extent not already vested in the Company by
operation of law) all copyright, design rights and other proprietary
rights (if any) for their full terms throughout the world in respect
of all copyright works and designs originated, conceived, written,
developed or made by the Executive alone or with others during the
Employment which
15
relate, or could relate, to the Businesses.
(c) The Executive irrevocably and unconditionally waives in favour of
the Company any and all moral rights conferred on the Executive by
Chapter IV, Part I, Copyright Designs and Patents Xxx 0000 and any
other moral rights provided for under the laws now or in future in
force in any part of the world for any work the rights in which are
vested in the Company whether by sub-clause (b) or otherwise.
(d) The Executive shall, at the request and expense of the Company, do
all things necessary or desirable (including entering into any
agreement that the Company reasonably requires to vest the rights
referred to in this clause in the Company) to substantiate the
rights of the Company under sub-clauses (b) and (c).
13.3 POWER OF ATTORNEY
The Executive irrevocably appoints the Company as his attorney in his
name and on his behalf to execute documents, to use his name and to do
all things which may be necessary or desirable for the Company to obtain
for itself or its nominee the full benefit of the provisions of
sub-clause 13.1(b) and 13.2(b) and a certificate in writing signed by any
director or the Company Secretary that any instrument or act falls within
the authority conferred by this clause shall be conclusive evidence that
such is the case so far as any third party is concerned.
13.4 CONFLICT OF INTEREST
(a) During the Employment, the Executive shall not:
(i) directly or indirectly disclose to any person or use other
than for any legitimate purposes of any Group Company any
Confidential Information;
(ii) without the Board's prior written permission hold any
Material Interest in any person which:
(A) is or shall be wholly or partly in competition with any
of the Businesses;
(B) impairs or might reasonably be thought by the Company
to impair the Executive's ability to act at all times
in the best interests of any Group Company; or
(C) requires or might reasonably be thought by the Company
to require the Executive to disclose or make use of any
Confidential Information in
16
order properly to discharge the Duties to or to further
the Executive's interest in that person;
(iii) at any time (whether during or outside normal working hours)
take any preparatory steps to become engaged or interested
in any capacity whatsoever in any business or venture which
is in or is intended to enter into competition with any of
the Businesses;
(iv) at any time make any untrue or misleading statement in
relation to any Group Company;
(v) carry out any public or private work other than the Duties
(whether for profit or otherwise and whether during or
outside normal working hours) except with the prior written
permission of the Board; or
(vi) directly or indirectly receive or obtain in respect of any
goods or services sold or purchased or other business
transacted (whether or not by the Executive) by or on behalf
of any Group Company any discount, rebate, commission or
other inducement (whether in cash or in kind) which is not
authorised by any Company rules or guidelines from time to
time and if the Executive or any person in which the
Executive holds any Material Interest shall obtain any such
discount, rebate, commission or inducement, the Executive
shall immediately account to the Company for the amount so
received.
(b) The Executive shall, at any time during the Employment or following
its termination, at the request of the Company or any Group Company
return to the relevant Group Company or, at the relevant Group
Company's request, shall destroy:
(i) any documents, drawings, designs, computer files or
software, visual or audio tapes or other materials
containing information (including, without limitation,
Confidential Information) relating to the Company or any
Group Company's business created by, in the possession of or
under the control of the Executive; and
(ii) any other property of the Company or any Group Company in
his possession or under his control.
(c) The Executive shall not make or keep or permit any person to make or
keep on his behalf any copies or extracts of the items referred to
in sub-clause (b) (i) in any medium or form.
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14. OBLIGATIONS AFTER EMPLOYMENT
14.1 The Executive shall not within the Restricted Area directly or indirectly
for the period of 9 months after the Termination Date be engaged on his
own account or in the capacity of employee, officer, consultant, adviser,
partner, principal or agent in or hold any Restricted Shareholding in any
company which carries on any business or venture which:
(a) is or is about to be in competition with any of the Businesses with
which the Executive has been concerned or involved to any material
extent during the 12 months preceding the Termination Date; or in
relation to which the Executive at the Termination Date possesses
Confidential Information; or
(b) requires or might reasonably be thought by the Company to require
the Executive to disclose or make use of any Confidential
Information in order properly to discharge the Executive's duties to
or to further the Executive's interest in that business or venture.
14.2 The Executive shall not directly or indirectly, whether on the
Executive's own behalf or on behalf of another person:
(a) for the period of 12 months after the Termination Date:
(i) accept orders for any Restricted Products or Restricted
Services from any Customer; or
(ii) accept orders for any Restricted Proposed Products or
Restricted Proposed Services from any Customer;
(b) for the period of 12 months after the Termination Date accept the
supply by any Supplier of Restricted Supplies;
(c) for the period of 12 months after the Termination Date:
(i) seek, canvass or solicit any business, orders or custom for
any Restricted Products or Restricted Services from any
Customer;
(ii) seek, canvass or solicit any business, orders or custom for
any Restricted Proposed Products or Restricted Proposed
Services from any Customer;
(iii) solicit or entice away or seek to entice away from any Group
Company any person who is and was at the Termination Date or
during the period of 12 months preceding the Termination
Date, employed or engaged by any Group Company in any of the
Businesses in a
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senior managerial, scientific, technical, supervisory, sales
or marketing capacity and was a person with whom the
Executive dealt in the course of the Duties and who by
reason of such employment or engagement is likely to have
knowledge of any trade secrets or Confidential Information
of the Company or any Group Company;
(d) at any time after the Termination Date:
(i) induce or seek to induce by any means involving the
disclosure or use of Confidential Information any Customer
or Supplier to cease dealing with the Company or any Group
Company or to restrict or vary the terms upon which it deals
with the relevant Group Company;
(ii) be held out or represented by the Executive or any other
person, as being in any way connected with or interested in
any Group Company; or
(iii) disclose to any person, or make use of any Confidential
Information.
14.3 UNDERTAKINGS
The Executive has given the undertakings contained in clause 14 to the
Company as trustee for itself and for each Group Company in the business
of which the Executive shall be involved or concerned to a material
extent during the Employment. The Executive will at the request and cost
of the Company enter into direct undertakings with any such Group Company
which correspond to the undertakings in clause 14.
14.4 LEGAL ADVICE
The undertakings contained in clause 14 are entered into by the Company
and the Executive after having been separately legally advised.
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15. DISCIPLINARY AND GRIEVANCE PROCEDURE
15.1 There are no specific disciplinary rules or procedures applicable to the
Executive. Any matters concerning the Executive's unsatisfactory conduct
or performance will be dealt with by the Chief Executive Officer. An
appeal against any disciplinary decision should be made by the Executive
in writing to the Board of
Visible Genetics Inc, whose decision will be
final.
15.2 If the Executive has any grievance relating to his Employment (other than
one relating to a disciplinary decision) he should refer such grievance
to the Chief Executive Officer and if the grievance is not resolved by
discussion with him it will be referred for resolution to the Board of
Visible Genetics Inc, whose decision shall be final.
16. COLLECTIVE AGREEMENTS
There are no collective agreements which affect the terms and conditions
of the Executive's employment.
17. DEDUCTIONS
The Executive consents to the deduction at any time from any salary or
other sum due from the Company to the Executive including any payment on
termination of employment, of any sum owed by the Executive to the
Company.
18. ENTIRE AGREEMENT
This Agreement (together with the letter of even date from the Company to
the Executive) sets out the entire agreement and understanding between
the parties and supersedes all prior agreements, understandings or
arrangements (oral or written) in respect of the employment or engagement
of the Executive by the Company. No purported variation of this Agreement
shall be effective unless it is in writing and signed by or on behalf of
each of the parties.
19. THIRD PARTIES
Unless expressly provided in this Agreement, no term of this Agreement is
enforceable pursuant to the Contracts (Rights of Third Parties) Xxx 0000
by any person who is not a party to it.
20. DATA PROTECTION
The Executive consents to the holding and processing by the Company or
any other Group Company of personal data (including, where appropriate,
sensitive personal data) relating to the Executive for the purposes of
personnel or pensions administration, employee
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management or compliance with any laws or regulations applicable to the
Company or any Group Company or its or their business.
21. RELEASES AND WAIVERS.
21.1 The Company may, in whole or in part, release, compound, compromise,
waive or postpone, in its absolute discretion, any liability owed to it
or right granted to it in this Agreement by the Executive without in any
way prejudicing or affecting its rights in respect of any part of that
liability or any other liability or right not so released, compounded,
compromised, waived or postponed.
21.2 No single or partial exercise, or failure or delay in exercising any
right, power or remedy by the Company shall constitute a waiver by it of,
or impair or preclude any further exercise of, that or any right, power
or remedy arising under this Agreement or otherwise.
22. NOTICES
22.1 Any notice to a party under this Agreement shall be in writing signed by
or on behalf of the party giving it and shall, unless delivered to a
party personally, be hand delivered, or sent by prepaid first class post
or facsimile, with a confirmatory copy sent by prepaid first class post
to, in the case of the Executive, the Executive's last known residential
address or, in the case of the Company, the Human Resources Department,
Visible Genetics Corporation, 00 Xxxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx, XXX 00000.
22.2 A notice shall be deemed to have been served:
(a) at the time of delivery if delivered personally to a party or to the
specified address;
(b) on the second working day after posting by first class prepaid post;
or
(c) 2 hours after transmission if served by facsimile on a business day
prior to 3pm or in any other case at 10 am on the business day after
the date of despatch.
23. GOVERNING LAW AND JURISDICTION
23.1 This Agreement shall be governed by and construed in accordance with
English law.
23.2 Each of the parties irrevocably submits for all purposes in connection
with this Agreement to the exclusive jurisdiction of the English courts.
IN WITNESS this Deed has been executed on the date appearing at the head of
page 1.
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SCHEDULE 1
BONUSES
1. For the period from 13 September 2001 until 12 September 2002, the
Executive shall be eligible to receive a guaranteed bonus payment
equivalent to 40% of his base salary of L137,500. The bonus shall become
payable on 12 September 2002 and shall be paid subject to the deduction
of Income Tax and National Insurance Contributions as appropriate.
2. For the period 13 September 2002 until 31 December 2002, the Executive
shall be eligible to receive a guaranteed bonus equivalent to 40% of his
base monthly salary received during this period. The bonus shall become
payable on 31 December 2002 and shall be paid subject to the deduction of
Income Tax and National Insurance Contributions as appropriate.
3. Thereafter, the Executive shall be eligible to participate in the
Executive Bonus Plan operated by the Company and/or
Visible Genetics Inc
which will be introduced with effect from 1 January 2003. The level of
bonus will be based on the successful achievement of both individual and
corporate objectives, the details of which will be agreed in writing with
the Executive on or before 1 January 2003
4. In order to be eligible to receive any bonus payment under the terms of
this Schedule, the Executive must have been in employment throughout the
period in question and remain in employment on the date the bonus becomes
payable.
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EXECUTED as a DEED )
by XXXXXXX XXXXXX )
in the presence of: )
SIGNATURE OF WITNESS:
NAME:
ADDRESS:
OCCUPATION:
EXECUTED as a DEED )
(but not delivered until the date )
appearing at the head of page 1) )
by VISIBLE GENETICS UK LIMITED )
acting by: )
Director
Director/Secretary
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