DATED 24 December 0000
XXXXXXXXXX LIFE SCIENCES GROUP PLC
-and-
XXXXXX LIMITED
MANAGEMENT SERVICES AGREEMENT
Xxxxxxx Xxxxxxx
0-00 Xxx Xxxxxx Xxxx
Xxxxxx XX0X 0XX
Tel: 0000 000 0000
Fax: 0000 000 0000
THIS AGREEMENT is made on 24 December 1999
BETWEEN:
(1) HUNTINGDON LIFE SCIENCES GROUP PLC whose registered office is at
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxx XX00 0XX (the
"Company"); and
(2) XXXXXX LIMITED whose registered office is at 00 Xxxxx Xxxxxx, Xxxxxx
XX0X 0XX (the "Consultant").
IT IS AGREED as follows:
A. The Consultant is engaged in business offering corporate advisory
consultancy services to companies
and has considerable skill, knowledge and experience in that field.
B. In reliance upon that skill, knowledge and experience, the Company
wishes to engage the Consultant to provide the services of the
Executive as a non-Executive Director to the Business (as such terms
are defined below) on the terms set out in this agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 In this agreement unless the context otherwise requires the
following expressions shall have the following meanings:
"Associated Company" means:
(a) a company which is not a Subsidiary of the
Company but whose issued equity share
capital (as defined in s744 of the Companies
Act 1985) is owned as to at least 20% by the
Company or one of its Subsidiaries; and
(a) a Subsidiary (as defined below)
"Board"
the board of directors for the time being of the Company;
"Business"
the provision of pre-clinical, early clinical and
non-clinical biological safety evaluation services to
the pharmaceutical, biotechnology, agrochemical and
other chemical industries;
"Commencement Date"
7th September 1999
"Executive"
Xxxxx Xxxxxx
"Group"
means the Company and its subsidiaries and Associated
Companies for the time being
and "Group Company" means any one of them;
"Intellectual Property"
all inventions (whether patentable or not) patents,
utility models, designs (both registered or
unregistered), copyright, database right, trade and
service marks (both registered and unregistered)
together with all rights to the grant of and
applications for the same and including all similar or
analogous rights throughout the world and all future
rights of such nature;
"Services"
means including but not limited to, (a) attending board
meetings (b) being available to consult on the business
affairs of the Company (c)ensuring effective management
and financial probity;
"Subsidiary"
means a Subsidiary within the meaning of s736 of the
Companies Xxx 0000;
"Working Day"
means a day other than a Saturday, Sunday or bank or
other public holiday in England.
1.2 Any reference to a statutory provision shall be deemed to include
a reference to any statutory
modification or re-enactment of it.
1.3 The headings in this agreement are for convenience only and shall
not affect its construction or interpretation.
1.4 References in this agreement to a person include a body corporate
and an incorporated association of persons and references to a
company include any body corporate.
2. TERM
2.1 This agreement shall commence with effect from the Commencement
Date and shall continue unless and until terminated by either the
Company or the Consultant giving to the other not less than 3
months notice in writing, at any time, subject to earlier
termination as provided below.
3. SERVICES
3.1 With effect from the Commencement Date, the Consultant shall
provide the Services to the Company and the Group and such other
services consistent with the Services as the Company may
reasonably require of the Consultant from time to time.
3.2 The Consultant shall provide the Services through the Executive.
3.3 The Consultant shall procure that the Executive will make himself
available to the Company at such locations and times as may be
agreed between the Company and the Executive.
3.4 The Consultant shall procure that the Executive will:
3.4.1 comply with all reasonable directions from time to time
given to him in connection with the provision of the
Services and shall keep the Company and the Board
regularly informed and shall give to the Company and the
Board such information regarding the provision of the
Services as the Company and/or the Board may reasonably
require;
3.4.2 comply (and procure that his spouse and minor children
comply) with all applicable rules and regulations of the
London Stock Exchange, the New York Stock Exchange, the
US Securities Exchange Commission and any codes of
conduct of the Group for the time being in force and of
any other relevant regulatory authority.
3.4.3 not directly or indirectly during the currency of
this agreement be employed by or perform any
services for or be interested in any manner in any
other business which is or may be
competitive with the Company or the Group except
with the consent in writing of the
Company or as holder or beneficial owner (for
investment purposes only) of any class
of securities in a company if those securities are
listed or dealt in on a recognised
investment exchange (as defined by section 207 (1)
Finance Services Act 1986) and where the Consultant
and the Executive (together with the Executive's spouse,
children, parents and parents' issue) together
neither hold nor are beneficially
interested in more than five per cent of that class.
3.4.4 keep the Company reasonably informed of his whereabouts
and telephone number or other means by which the
Executive can be contacted easily at short notice.
3.5 The Consultant will ensure that the Executive completes and will
be responsible for completing the Services including returning all
drawings, designs, plans, documents, paper, models, materials,
disks or any other property, in whatever format, belonging to the
Company, the Group and/or clients of the Company or the Group. The
Consultant will also provide all details and complete all
documentation and procure that the Executive provides all details
and completes all documentation which may be necessary to comply
with clause 8 below.
4. DUTIES OF THE CONSULTANT
4.1 The Consultant shall procure that the Executive will:
4.1.1 perform the Services with due diligence and in a safe
and competent manner and acquaint himself with and
comply with any working practice's rules or procedures
applicable to others (whether independent contractors or
employees of the Company or of the Group) at any
location where the Executive is performing the Services
(whether or not at the Company's premises);
4.1.2 act in and use his best endeavours to protect and
promote the interests of the Company and, where
consistent with them, the Group, in accordance with the
general policy and directions of the Company;
4.1.3 provide the full benefit of his knowledge, expertise and
skill in connection with the provision of the Services
and devote his full time, attention and abilities to the
Company and the Group at such times as the Executive is
required to provide the Services pursuant to clause
3(3).
5. FEE
5.1 The Company shall pay a fee to the Consultant at a rate of
(pound)20,000 per annum (plus VAT if appropriate) upon production
of a valid invoice in accordance with clause 5(2) below (the
"Fee") .
5.2 The Consultant shall invoice the Company on the last day of
September 1999 and thereafter on 1st January, 1st April, 1st July
and 1st October in any year for the Fee incurred in respect of
that quarter. The Company shall pay the invoice within 30 days of
receipt.
6. EXPENSES
6.1 The Company shall, in addition to payment of the fee, reimburse
the Consultant, on production of such vouchers or other evidence
as the Company may reasonably require, any reasonable travelling,
other expenses which are reasonably and properly incurred by the
Executive in the course of providing the Services.
6.2 The amount of any expenses shall either be included by the
Consultant in its invoice submitted at the end of each quarter or
as a separate claim at the end of each month and the Company shall
reimburse the Consultant within 30 days of receipt of the invoice.
7. CONFIDENTIAL INFORMATION
7.1 The Consultant undertakes to the Company that throughout the
period of and after the termination of this agreement it shall
treat as secret and confidential and shall procure that the
Executive shall treat as secret and confidential any information
which may be received by the Consultant, all work performed by the
Executive in the course of providing the Services which comes to
the knowledge of the Consultant and/or the Executive in the course
of or in connection with the provision of the Services (the
"Information").
7.2 The Consultant also undertakes, and shall procure that the
Executive shall, not at any time nor for any reason disclose or
permit to be disclosed to any person or otherwise make use of or
permit to be made use of the Information other than for the
purpose of providing the Services to the Company and/or the Group.
7.3 The restrictions contained in clauses 7(1) and 7(2) above shall
cease to apply to any Information which:
7.3.1 may come into the public domain otherwise than by breach of the
Consultant or the Executive of the
obligations set out in this clause; or
7.3.2 is disclosed to the Consultant or the Executive by a third party
who has not received it either directly or indirectly from the
Company; or
7.3.3 must be disclosed by any applicable law, to the extent of such
required disclosure.
7.4 In respect of Information divulged to the Consultant or the
Executive in the course of or for the
purpose of performing services on behalf of the Company or the
Group for third parties, the Consultant shall comply and shall
procure that the Executive shall comply with the terms of all
undertakings given by the Company to such third parties as if such
undertaking were made by the Consultant and the Executive. The
Company shall give to the Consultant a copy of each such
undertaking, which shall be signed by the Company and the
Consultant for the purpose of identification.
8. INTELLECTUAL PROPERTY
8.1 In consideration of the payment of one pound ((pound)1) receipt
of which the Consultant hereby acknowledges:-
8.1.1 If the Consultant or the Executive makes or participates in making
any invention or any design (whether registerable or not) or any
work in which copyright and/or design right subsists, in
connection with the provision of the Services, and which relates to
or is useful in connection with the Business and/or the business
of the Group, the Consultant shall disclose such invention, design
or work to the Company immediately. In the case of such an
invention the Consultant shall give the Company full
particulars of the invention together with all information, data
(in all forms and in all media) drawings and models embodying or
relating to the invention and in the case
of designs and copyright works, a copy of all such designs and works.
8.1.2 All rights in Intellectual Property which may be created
by each of the Consultant and the Executive in the
course of providing the Services shall be the sole and
exclusive property of the Company and the Consultant
hereby assigns and shall procure that the Executive
shall assign all such Intellectual Property to the
Company by way of present and future assignment with
full title guarantee.
8.1.3 In the case of registerable rights the Consultant shall
if requested by the Company execute and shall procure
that the Executive executes all documents and do all
things which may be necessary or desirable for obtaining
the best possible registerable protection in territories
specified by the Company, and in respect of all
Intellectual Property the Consultant shall execute and
shall procure that the Executive executes all documents
and do all such things as may be necessary or desirable
for perfecting assignment of Intellectual Property under
clause 8.1.2 above.
8.1.4 The Consultant hereby irrevocably appoints the Company
to be its attorney in its name and on its behalf to
sign, execute any instrument or do anything and
generally to use its name for the purpose of giving to
the Company and/or the Group the full benefit of the
provisions of this clause and in favour of any third
party a certificate in writing signed by any director or
the secretary of the Company that any instrument or act
falls within the authority conferred by this clause
shall be conclusive evidence that such is the case.
9. TERMINATION
9.1 Without prejudice to any remedy it may have against the Consultant
for breach or non-performance of any provision of this agreement
the Company may by written notice to the Consultant terminate this
agreement with immediate effect if:
9.1.1 the Consultant or the Executive is in material breach of any of the
terms of this agreement; 9.1.2 the Consultant is in breach of
clause 3(2) of this agreement being at any time unable to provide the
services of the Executive, provided that if the
Executive is incapacitated by reason of sickness or
injury the Company shall not terminate this agreement
until the Executive has been so incapacitated for a
continuous period of 13 weeks;
9.1.3 the Consultant or the Executive is guilty of serious
misconduct or wilful and persistent neglect of their
respective obligations under this agreement;
9.1.4 any order shall be made or effective resolution passed
for liquidation, winding up or dissolution of the
Consultant (otherwise than for the purpose of
reconstruction or amalgamation on terms approved by the
Company);
9.1.5 the Executive becomes bankrupt or makes any composition
or enters into any deed of arrangement with his
creditors in circumstances which would have a material
adverse effect on the Company, the Group or their
respective reputations;
9.1.6 the Executive is convicted of any arrestable criminal
offence (other than an offence under road traffic
legislation in the United Kingdom or elsewhere for which
a fine or non-custodial penalty is imposed) in
circumstances which would have a material adverse effect
on the Company, the Group or their respective
reputations;
9.1.7 the Executive is convicted of an offence under the
Companies Securities (Insider Dealing) Xxx 0000 or under
any other present or future statutory enactment or
regulations relating to insider dealings under English
or New York law;
9.1.8 the Executive ceases to be employed by or to have a substantial
interest in the Consultant; 9.1.9 the Executive and/or the Consultant,
in the reasonable opinion of the Company, act in such a way as
to seriously jeopardise the business of the Company and/or the Group.
9.2 Upon termination of this agreement for whatever reason the
Consultant shall deliver and shall procure that the Executive
delivers to the Company all books, documents, papers, materials
and other property (in whatever format) relating to the Business,
and/or the business of the Group or the clients of the Company or
the Group which may then be in its or the Executive's possession
or under its or his power or control.
9.3 The Company may at any time and in its absolute discretion
(whether or not any notice of termination has been given by the
Company or the Consultant under clause 2(1) above) terminate this
agreement with immediate effect by making a payment in lieu of
notice.
10. POST-TERMINATION RESTRICTIONS
10.1 Definitions
In this clause:
10.1.1 "Termination Date" means the date on which the employment terminates;
10.1.2 "Person" includes any company, firm, organisation or other entity;
10.1.3 "Area" means any country in the world where on the Termination
Date the Company was supplying
services;
10.1.4 "Business" means any business carried on by the Company
or any Group Company which relates to the provision of
pre-clinical, early clinical and/or non-clinical
biological safety evaluation services to the
pharmaceutical and biotechnology, agrochemical and other
chemical industries;
10.1.5 "Client" means any Person to whom the Company or a Group
Company supplied during the 6 months preceding the
Termination Date and with whom at any time during such
period the Consultant was actively involved;
10.1.6 "Prospective Client" means any Person with whom the
Company or a Group Company had negotiations or
discussions regarding the possible supply of services
during the 6 months immediately preceding the
Termination Date and with whom at any time during such
period the Consultant was actively involved.
10.2 The Consultant covenants with the Company that it shall not at any
time during the continuance of this agreement or for a period of 6
months after the termination of it solicit or endeavour to solicit
whether directly or indirectly any senior employee of the Company
or a Group Company to leave and with whom at any time during the
period of 6 months prior to such termination the Consultant was
actively involved (whether in breach of the terms of their
contract or not).
10.3 The Consultant covenants with the Company that it shall not
for a period of six months from the
Termination Date in the Area:
10.3.1 canvass or solicit business for services similar to
those being provided by the Company or a Group Company
as at the Termination Date from any Client or
Prospective Client;
10.3.2 seek to do business or deal with any Client or
Prospective Client in respect of services similar to
those being provided by the Company or a Group Company
as at the Termination Date; or
10.3.3 canvass or solicit business from any supplier of the
Company or a Group Company with whom the Consultant was
actively involved during the 6 months ending on the
Termination Date or persuade such supplier to cease to
supply, or to restrict or vary the terms of supply to
the Company or a Group Company or otherwise interfere
with the relationship between such a supplier and the
Company or a Group Company.
10.4 The Consultant shall not for a period of 6 months from the
termination of this agreement directly or indirectly be interested
or concerned in any business which is carried on in the Area and
which is competitive or likely to be competitive with the Business
being carried on at the Termination Date and with which the
Consultant was actively involved during the 6 month period ending
on the Termination Date.
For this purpose, the Consultant is concerned in a business if:
10.4.1 he carries it on as principal or agent; or
10.4.2 he is a partner, director, employee, secondee, consultant or agent
in, of or to any Person who
carries on the business; or
10.4.3 he has any direct or indirect financial interest (as
shareholder or otherwise) in any Person who carries on
the business.
11. NO EMPLOYMENT OR PARTNERSHIP
11.1 Nothing contained in this agreement shall be construed or have
effect as constituting any relationship of employer and employee
or partners or any other fiduciary relationship between the
Company and the Consultant or between the Company and the
Executive.
11.2 The Consultant shall be responsible for the payment of any
remuneration payable to and benefits provided for the Executive
under his contract of employment or otherwise including any
National Insurance, income tax and any other form of taxation or
social security cost in respect of his remuneration or benefits.
The Consultant shall indemnify the Company and/or any Group
Company in respect of any such payment, including any interest or
penalties imposed on the Company or the Group in respect of any
payments made to the Company under this agreement.
12. WARRANTIES
The Consultant warrants to the Company that:
12.1 the Consultant employs the Executive; and
12.2 the provision of the Services shall not:-
12.2.1 infringe the Intellectual Property of any third party; or
12.2.2 involve the use of information in breach of obligations owed to or
rights held by any third party;
and
12.2.3 the Company will not infringe the Intellectual Property
of any third party by the Company exercising all of the
rights of the owner of the Intellectual Property
assigned by the Consultant to the Company under this
agreement; and
12.2.4 Neither the Consultant nor the Executive is bound by any
legally enforceable obligations owed to persons other
than the Company which would prevent either the
Consultant or the Executive from complying with the
terms of this agreement.
13. SEVERABILITY
If any of the provisions of this agreement become invalid or unenforceable
for any reason by virtue of applicable law the remaining provisions shall
continue in full force and effect and the Company and the Executive hereby
undertake to use all reasonable endeavours to replace any legally invalid
or unenforceable provision with a provision which will promise to the
parties (as far as practicable) the same commercial results as well
intended or contemplated by the original provision.
14. PREVIOUS AGREEMENTS
With effect from the Commencement Date, all other agreements and
arrangements between the Consultant or the Executive and the Company
relating to the provision of Services by the Consultant or the Executive
shall cease to have effect.
15. GRATUITIES
The Consultant shall not, and shall procure that the Executive shall not,
directly or indirectly accept any commission, discount, gratuity or other
benefit from any person who has or is likely to have a business
relationship with the Company and/or the Group.
16. GOVERNING LAW
16.1 This agreement shall be governed by and construed in accordance with
English law.
16.2 The parties agree that the courts of England are to have exclusive
jurisdiction to settle any dispute which may arise out of or in
connection with this agreement and submit to the jurisdiction of
those courts.
17. NOTICES
17.1 Any notice or other document to be served under this agreement may
be delivered or sent by first class post or telex or facsimile
process to the party to be served at its registered office for the
time being.
17.2 Unless the contrary is proved, any such notice or other document
shall be deemed to have been served: 17.2.1 if delivered, at the
time of delivery; 17.2.2 if posted, at 10.00am on the second
Working Day after it was put into the post; or 17.2.3 if sent by
telex or facsimile process, at the expiration of two hours after
the time of despatch, if despatched before 3.00pm on any Working
Day, and in any other case at 10.00am on the Working Day following
the date of despatch.
17.2.4 In proving such service it shall be sufficient to prove
that delivery was made or that the envelope containing
such notice or other document was properly addressed and
posted as a pre-paid first class letter or that the
telex or facsimile message was properly addressed and
despatched as the case may be.
AS WITNESS the hands of the duly authorised representatives of the Company and
of the Consultant on the date first mentioned on page one.
SIGNED by )
on behalf of HUNTINGDON LIFE SCIENCES GROUP PLC )
)
in the presence of:- )
Witness signature:
Name:
Address:
Occupation:
SIGNED by )
on behalf of XXXXXX LIMITED
in the presence of:- )
Witness signature:
Name:
Address:
Occupation:
