At the Annual General Meeting of shareholders held on September 24, 2008, Shire made this service agreement available for review.
Exhibit 10.22
At the Annual General Meeting of
shareholders held on September 24, 2008, Shire made this service agreement
available for review.
Dated 2 July 2008
(1) SHIRE
LIMITED
-
and -
(2)
XX XXXXX XXXXXXX
SERVICE AGREEMENT
THIS AGREEMENT is made the 2
day of July 2008
BETWEEN:
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(1)
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SHIRE
LIMITED (registered number 99854) a company incorporated in
and under the laws of Jersey and having its registered office at 00
Xxxxxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX (the "Company");
and
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(2)
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XX XXXXX XXXXXXX of 00
Xxxxxxxxx Xxxxxx, Xx Xxxxxx, Xxxxxx XX0 0XX (the
"Executive").
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WHEREBY it is agreed
that the Company shall employ the Executive and the Executive shall serve the
Company as Chief Executive Officer on the following terms and subject to the
following conditions.
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1.
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Commencement
and Term
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1.1
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The
Executive's continuous employment with the Company commenced on 13
December 1999.
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1.2
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The employment
of the Executive shall (subject to the provisions of Clause 15) be
terminable by either the Company or the Executive giving to the other 12
(twelve) months' notice in writing commencing at any
time.
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1.3.1
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The Company
may at its absolute discretion elect at any time to terminate the
employment of the Executive with immediate effect by paying to the
Executive (less deductions as appropriate) salary in lieu of notice and a
sum (which shall be calculated by multiplying the Relevant Amount by the
number of months' notice which the Executive was entitled to receive at
the date of such termination) in compensation for the immediate loss by
the Executive of his other benefits
hereunder.
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1.3.2
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In the event
that the Company terminates the employment of the Executive pursuant to
Clause 1.3.1 at any time, the Relevant Amount shall be the aggregate
of:
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(a)
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an amount, to
be decided at the absolute discretion of the Remuneration Committee, which
may be up to the target annual bonus under the Executive Annual Incentive
Plan (EAIP) to which, had he served his notice, the Executive would have
been entitled pursuant to Clause 4 based on 100% achievement of group and
personal objectives for the bonus year in which his employment terminates
(based on the Executive's salary at the date on which his employment
terminates), divided by 12 (twelve);
and
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(b)
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(i)
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30% of the Executive's basic
salary (taken at the date of termination of this Agreement) in lieu
of Company contributions to the Executive's pension
scheme pursuant
to Clause 6 of this Agreement,
and
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(ii)
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an amount
equal to the actual cost to the Company of providing the benefits due for
the period of notice to the Executive pursuant to Clauses 7 and 8 of this
Agreement,
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in
each case divided by 12 (twelve).
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1.3.3
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On
the termination of the
Executive's employment under this Clause 1, the Executive's rights to
receive shares or exercise rights in relation to (or calculated by
reference to) shares under any relevant bonus or incentive scheme will be
determined in
accordance with the rules of the relevant
scheme.
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2.
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Obligations
during Employment
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The
Executive shall during the continuance of his employment:
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(a)
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serve the Company to
the best of his ability in the capacity of Chief Executive
Officer;
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(b)
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faithfully and
diligently perform such duties and exercise such powers consistent with
them as the Board may from time to time properly assign to or confer upon
him in such capacity or otherwise in connection with the business of the
Company or any Associated Company;
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(c)
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perform and
exercise the said duties and powers on behalf of any Associated Company
and act as a director or other officer of any Associated
Company;
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(d)
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do all in his
power to protect, promote, develop and extend the business interests and
reputation of the Group;
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(e)
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at all times
and in all respects conform to and comply with the lawful and reasonable
directions of the Board;
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(f)
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upon receiving
reasonable notice promptly give to the Board (in writing if so requested)
all such information, explanations and assistance as it may require in
connection with the business and affairs of the Company and any Associated
Company for which he is required to perform
duties;
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(g)
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unless
prevented by sickness, injury or other incapacity or as otherwise agreed
by the Board devote the whole of his time, attention and abilities during
his hours of work (which shall be normal business hours and such
additional hours as may be necessary for the proper performance of his
duties) to the business and affairs of the Company and any Associated
Company for which he is required to perform duties (save that the
Executive may, with the prior written consent of the Board, become a
non-executive director of other
companies);
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(h)
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work at such
place of business of the Company or any Associated Company as the Company
may reasonably require for the proper performance and exercise of his
duties and powers and the Executive may be required to travel on the
business of the Company and any Associated Company for which he is
required to perform duties; and
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(i)
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comply with
the Company's Code of Ethics
Policy.
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3.
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Further
Obligations of the Executive
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3.1
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During the
continuance of his employment the Executive shall devote his whole time
and attention to his duties under this Agreement and shall not directly or
indirectly carry on or be engaged, concerned or interested in any other
business, trade or occupation otherwise than as a holder directly or
through nominees (including for the purposes hereof through any trust
whether established by the Executive or otherwise and whether
discretionary or otherwise of which the Executive is a beneficiary) of not
more than 3% in aggregate of any class of shares, debentures or other
securities in issue from time to time of any company (or, if different,
amounting to no more than 3% in terms of the economic value of all such
shares and securities (whether by way of dividend or upon any return in
capital) and/or voting or other rights attaching thereto in respect of any
matters) which are for the time being quoted or dealt with on any
recognised investment exchange (as defined by section 285(1)(a) of the
Financial Services and Markets Act 2000) provided that nothing in this
Clause 3.1 shall prevent the Executive from continuing to hold his current
portfolio of investments in
securities.
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3.2
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During the
continuance of his employment the Executive shall in relation to any
dealings in securities comply with all laws affecting dealings in the
securities of such companies and all regulations of any relevant stock
exchanges on which such dealings take
place.
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3.3
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During the
continuance of his employment the
Executive:
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2
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(a)
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shall not
directly or indirectly procure, accept or obtain for his own benefit (or
for the benefit of any other person) any payment, rebate, discount,
commission, vouchers, gift, entertainment or other benefit from any third
party in respect of any business transacted or proposed to be transacted
(excluding air miles or similar vouchers from other such schemes) (whether
or not by him) by or on behalf of the Company or any Associated Company
("Gratuities");
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(b)
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shall observe
the terms of any policy issued by the Company in relation to Gratuities;
and
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(c)
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shall
immediately disclose and account to the Company for any Gratuities
received by him (or by any other person on his behalf or at his
instruction).
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4.
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Remuneration
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4.1
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The Company
shall pay to the Executive with effect from 1 June 2008 a basic salary
(which shall accrue from day to day) at the rate of £602,000 per year
inclusive of any directors' fees payable to the Executive under the
articles of association of the Company or any Associated Company (and any
such fees as the Executive shall receive he shall pay to the Company).
Such basic salary shall be inclusive of an annual amount payable in
respect of Board duties performed by the Executive in the Republic of
Ireland ("the Irish
Board Fee"). The Irish Board Fee shall be
£65,000 or such greater amount as is payable to the senior non-executive
director of the Company (other than the Chairman) in respect of his or her
duties as a director of the Company. The salary shall be payable by equal
monthly instalments in arrears on the last day of each calendar month and
shall be subject to review by the Remuneration Committee not less than
annually with effect from 1 January in each
year.
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4.2
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Subject as
stated below the Executive shall be entitled to receive a bonus in
accordance with the rules and terms of the Company's EAIP scheme (or such
other bonus scheme as the Company may implement from time to time). The
amount of any bonus shall be at the discretion of the
Remuneration Committee. The target annual bonus under the EAIP shall
be a cash target of sixty-five per cent (65%) and a share target of twenty
per cent (20%) of the Executive's basic annual salary from time to time
paid under Clause 4.1. The maximum annual bonus under the EAIP shall be a
cash bonus of one hundred fifteen per cent (115%) and a maximum share
bonus of sixty-five per cent (65%) of the Executive's basic annual salary
under Clause 4.1. Any bonus payment shall be subject to deductions as
appropriate. The Company reserves the right to change any bonus terms from
year to year.
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4.3
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In the event
that the Executive's employment hereunder terminates during any bonus year
he shall be entitled to receive a proportion of the bonus he would have
received had his employment not been terminated and the Remuneration
Committee shall use its best endeavours but at its sole discretion to
determine the estimation of such bonus. Such proportion shall be
calculated as the fraction derived from dividing the period during which
the Executive was employed hereunder during the relevant bonus year by the
period of the bonus year.
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5.
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Incentive
Schemes
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If
the Executive is at any time granted options or awards pursuant to a share
incentive scheme of the
Company, those options or awards shall be subject to the rules of that scheme
as in
force from time to time which rules shall not form part of the Executive's
service agreement. In
particular, if the Executive's employment should terminate for any reason
(including as a
result of a repudiatory breach of contract by the Company) he will not be
entitled to any
compensation for any loss of any right or benefit or prospective right or
benefit under any such
scheme which he may have enjoyed whether such compensation is claimed
by way
of damages for wrongful dismissal or other breach of contract or by way of
compensation for
loss of office or otherwise.
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6.
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Pension
Scheme
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6.1
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The Executive
shall be entitled to a pension contribution in respect of his basic salary
(but excluding the Irish Board Fee). The Company shall contribute to such
pension scheme as the Executive shall specify an amount equal to such
proportion of his basic salary (excluding the Irish Board Fee) as would
give rise to a contribution equal to thirty per cent (30%) of the
Executive's basic salary under clause 4.1.from time to time. Such
contributions shall be made monthly at the date when salary is paid Isn't
hereunder redundant here?. Such contributions shall be in addition to the
Executive's basic salary.
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6.2
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No
contracting-out certificate is in force in respect of the employment of
the Executive.
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7.
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Insurances
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Subject to his
complying with and satisfying any applicable requirements of the relevant
insurers the Company shall during the continuance of his
employment:
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(a)
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provide for
the Executive and his partner or spouse and children under the age of 18
years membership of an appropriate private patient medical plan (to
include cover for dental treatment) with such reputable medical expenses
insurance scheme as the Company shall decide from time to time. The
Executive shall be entitled to remain a member of such plan in accordance
with and subject to its rules from time to time. The Executive shall also
be allowed to participate in an annual Executive Physical program, subject
to a maximum annual reimbursement of
£1,500;
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(b)
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provide the
Executive with life assurance cover which in the event of his death during
the continuance of his employment may pay to his chosen dependants
(subject only to the discretion of the trustees of the appropriate scheme)
a lump sum equal to a minimum of 4 (four) times his then annual rate of
salary. If such lump sum is more than the permitted maximum, such surplus
will be made available (subject to the discretion of the trustees
aforesaid) for the purchase of an annuity for the Executive's dependants
subject as necessary to a medical examination. The Executive will co
operate with the Company in any way reasonably necessary in order for
the Company to comply with its obligations thereunder including, without
prejudice to the generality hereof, by submitting himself for such medical
examination as may be required of him in connection therewith from time to
time;
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(c)
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provide for
the Executive membership at the cost of the Company of any permanent
health care scheme and prolonged disability scheme operated by the Group
for the benefit of executives. The Executive shall be entitled to remain a
member of such scheme in accordance with and subject to its rules from
time to time; and
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(d)
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provide
Directors' and Officers' insurance cover for the benefit of the Executive
under the same policy as will be provided for the other directors such
cover to continue to cover the Executive in respect of acts or omissions
committed during his employment hereunder whether claims are made during
or within the period of 7 (seven) years after the termination of the
employment hereunder.
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8.
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Other
Benefits
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The
Company shall provide the Executive with the sum of £18,000 per annum
(payable in 12 (twelve) monthly instalments on the date the Executive's
salary is paid less any deductions the Company is required to make by law)
to enable the Executive to purchase, maintain, comprehensively insure and
tax a car for his use during the continuance of his employment, together
with reimbursement of all business and reasonable private
petrol.
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4
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9.
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Expenses
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9.1
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The Company
shall during the continuance of his employment reimburse the Executive in
accordance with the Company's travel and expenses policy as amended from
time to time.
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9.2
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The Company
shall, under its Executive Financial Services Reimbursement Programme,
provide the Executive with the sum of £5,000 per annum (less any
deductions the Company is required to make by law) towards the cost of
legal expenses and financial planning
services.
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10.
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Holidays
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10.1
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The Executive
shall (in addition to the usual public and bank holidays) be entitled
during the continuance of his employment to 30 (thirty) working days' paid
holiday in each holiday year, or such greater number in accordance with
the Company's policy from time to time to be taken at a time or times as
shall be convenient to the Company.
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10.2
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The Executive
shall be entitled to carry forward to the following year up to 5 days'
untaken annual holiday entitlement in each holiday year. The carry forward
of any additional holiday entitlement not taken by him for any reason from
one holiday year to the next shall require the prior written consent of
the Board (such consent not to be unreasonably
withheld).
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10.3
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Upon the
termination of his employment the Executive's entitlement to accrued
holiday pay (which accrues at the rate of 2.5 days per month) shall be
calculated on a pro rata basis in respect of each completed month of
service in the holiday year in which his employment terminates and the
appropriate amount shall be paid to the Executive in addition to payment
in lieu for any holidays not taken in previous holiday years provided that
if the Executive shall have taken more days holiday than his accrued
entitlement the Company is hereby authorised to make an appropriate
deduction from the Executive's final salary
payment.
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11.
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Incapacity
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11.1
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Subject to his
complying with the Company's procedures relating to the notification and
certification of periods of absence from work as from time to time in
force the Executive shall continue to be paid his salary (inclusive of any
statutory sick pay or social security benefits to which he may be
entitled) during any periods of absence from work due to sickness, injury
or other incapacity incapacitating the Executive from attending to his
duties up to a maximum of 26 (twenty-six) weeks in aggregate in
any period of 52 (fifty-two) consecutive
weeks.
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11.2
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If the
Executive shall have been absent from work due to sickness, injury or
other incapacity for a continuous period of 26 (twenty-six) weeks or more
then he shall receive such benefits (if any) as are available to him under
the terms of the Company's permanent health insurance scheme or such
greater sum (if any) as the Board may in its absolute discretion
decide.
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11.3
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If any
incapacity of the Executive shall be or appear to be caused by any alleged
action or wrong of a third party and the Executive shall decide to claim
damages in respect thereof, then the Executive shall use all reasonable
endeavours to recover damages for loss of earnings over the period for
which salary has been or will be paid to him by the Company under Clause
11.1, and shall account to the Company for any such damages recovered (in
an amount not exceeding the actual salary paid or payable to him by the
Company under Clause 11.1 in
respect of the said period) less any costs borne by him in achieving such
recovery.
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The
Executive shall keep the Company informed of the commencement, progress and
outcome of any such claim.
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12.
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Intellectual
Property
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12.1
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For
the purposes of this Clause 12 the term "IPRs" means any and all patents,
trade and service marks, unregistered design rights, registered design
rights, trade and business
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names,
copyrights (including copyright in software), database rights, topography rights
and allother
intellectual property rights (whether or not any of these is registered and
including applications for registration of any such thing) and all rights or
forms of protection of a similar nature
or having equivalent or similar effect to any of these which may subsist
anywhere in the
world.
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12.2
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If
the Executive creates, makes, authors, originates, conceives or writes
(either alone or with others) any works, designs, innovations, inventions,
improvements, processes, get-ups ortrade
marks in the course of his employment with the Company ("Works"):
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(a)
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the Executive
will promptly disclose to the Company full details of any such inventions,
processes, improvements or other
Works;
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(b)
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all rights
(including, without limitation, all IPRs) in and to such Works shall
solely legally and beneficially vest in the Company immediately upon their
creation without any payment to the
Executive;
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(c)
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the
Executive hereby irrevocably and unconditionally waives, in favour of the
Company, its
licensees and successors-in-title any and all moral
rights conferred on the Executive in relation to the Works (existing or future);
and
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(d)
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the Executive
shall not knowingly do anything, or omit to do anything, to imperil the
validity of any patent or protection, or any application therefore,
relating to any of the Works.
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12.3
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To
the extent such rights and IPRs do not so vest in the Company, the
Executive hereby (i) assigns
to the Company all future copyright, database rights and unregistered
design rights in the Works and (ii) in respect of all other rights and
IPRs agrees to assign to the Company all of the Executive's right, title
and interest (including without limitation all IPRs) in the
Works.
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12.4
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The
Executive hereby irrevocably authorises the Company to be his attorney,
and to make use
of his name and to sign and execute any documents and/or perform any act
on his behalf, for the purpose of giving to the Company the full benefit
of the provisions of this Clause 12 and, where permissible, to obtain
patent or other protection in respect of any of the Works in the
name of the Company or the Company's
nominee.
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12.5
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The
Executive shall from time to time, both during his employment under this
Agreement and thereafter, at the request
and expense of the Company, promptly do all things and execute all
documents necessary or desirable to give effect to the provisions of this
Clause 12 Including, without limitation, all things necessary to obtain
and/or
maintain patent
or other protection in respect of any Works in any part of the
world and to vest such rights (including, without limitation, all IPRs) in and
to the Works in the Company or the Company' s
nominee.
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12.6
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For
the avoidance of doubt, the provisions of this Clause 12 shall apply to
any rights (including, without limitation, any IPRs) in the Works arising
in any jurisdiction, and the provisions of this Clause 12 shall apply in
respect of any jurisdiction to the extent permitted by the
directives, statutes, regulations and other laws of any such
jurisdiction.
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13.
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Confidentiality
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13.1
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The
Executive shall not (other than in the proper performance of his duties or
without the prior written
consent of the Board or unless ordered by a court of competent
jurisdiction) at any time either during the continuance of his employment
hereunder or after its termination disclose
or communicate to any person or use for his own benefit or the benefit of
any person other than the Company or any Associated Company any
confidential information which may come to his knowledge in the course of
his employment hereunder concerning the business or finances of any member
of the Group or of any of its suppliers, agents, distributors or
customers
and the Executive shall during the continuance of his employment hereunder
use
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his
best endeavours (and following any termination thereof his reasonable
endeavours) to prevent
the unauthorised publication or misuse of any confidential information provided
that such
restrictions shall cease to apply to any confidential information which may
enter the public
domain other than through the default of the Executive but in any event the
restrictions in
this Clause 13.1 shall remain in full force and effect for so long as the
Executive is in a position
to utilise such information more readily than persons who have not been employed
by the
Company or Its Associated Companies.
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13.2
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All notes and
memoranda of any trade secret or confidential information concerning the
business of the Company or the Associated Companies or any of its or their
suppliers, agents, distributors, customers or others which shall have been
acquired, received or made by the Executive during the course of his
employment shall be the property of the Company and shall be surrendered
by the Executive to someone duly authorised in that behalf at the
termination of his employment or at the request of the Board at any time
during the course of his
employment.
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13.3
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Without
prejudice to the generality of Clause 13.1 the following is, for the
avoidance of doubt, a non-exhaustive list of matters which in relation to
the Company and the Associated Companies are considered confidential and
must be treated as such by the Executive (for the purposes of
this Agreement):
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(a)
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any trade
secrets of the Company or any Associated
Company;
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(b)
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any
information in respect of which the Company or any Associated Company is
bound by an obligation of confidence to any third
party;
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(c)
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customer lists
and details of contacts with or requirements of customers;
and
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(d)
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any invention,
technical data, know-how, instruction or operations manual or other
manufacturing or trade secrets of the Group and/or their
clients/customers.
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13.4
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The Executive
shall comply with any reasonable policy produced by the Company concerning
the Executive's ability to either directly or indirectly publish any
opinion, fact or material or deliver any lecture or address or participate
in the making of any film, radio broadcast or television transmission or
communicate with any representative of the media or any third party
relating to the business or affairs of the Company or any Associated
Company or to any of its or their officers, employees, customers/clients,
suppliers, distributors, agents or shareholders or to the development or
exploitation of Works or IPRs (as defined in Clauses 12.1 and 12.2). For
the purpose of this Clause "media" shall include television (terrestrial,
satellite and cable) radio, newspapers and other journalistic
publications.
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14.
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Garden
Leave
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14.1
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The Company
may during all or any part of the period of notice as specified in Clause
1.2 of this Agreement (whether given by the Company or by the Executive)
place the Executive on garden leave by not providing him with any work and
excluding him from any premises of the Company and any Associated Company
(and need not give any reason for so
doing).
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14.2
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Such period of
garden leave will not constitute a termination of the Executive's
employment (and will not prejudice his continuing entitlement to salary
and benefits). The Executive will continue to be bound by the provisions
of this Agreement and must during any period of garden leave continue at
all times to conduct himself with good faith towards the Group and not do
anything that is harmful to the
Group.
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14.3
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The Executive
may not during any period of garden leave directly or indirectly be
employed by or retained by or advise or assist any other person or entity
in any capacity either paid or unpaid (except approved non-executive
positions).
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14.4
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The Company
may require the Executive to resign from office as a director of the
Company or any Associated Company during any period of garden leave and
the Executive must resign as soon as reasonably practicable after any such
request is made. Notwithstanding any other provision of this Agreement,
such resignation shall not terminate the Executive's employment under this
Agreement.
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14.5
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The Executive
acknowledges that any demand which may be made in accordance with the
terms of Clauses 14.1 to 14.4 above shall not constitute a breach of
contract of any kind whatsoever. The Executive will not have any claim
against the Company or any Associated Company as a consequence of being
required to comply with those
clauses.
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14.6
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The Executive
hereby irrevocably appoints the Company to execute any instrument on his
behalf to effect his resignation as a director if he fails to resign upon
request in accordance with Clause
14.4.
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14.7
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The Executive
shall, during any period of garden leave, remain available upon reasonable
prior notice to perform any reasonable duty requested by the Company and
shall co-operate generally with the Company to ensure a smooth hand over
of his duties.
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14.8
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The Company
may appoint another individual to carry out the Executive's duties during
any period that he is on garden leave in accordance with Clause
14.
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14.9
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At the end of
any period of garden leave under Clause 14.1, where this occurs before the
end of the notice period under Clause 1.2, the Company shall either pay
the Executive a sum equal to his basic salary and the Relevant Amount
(calculated in accordance with Clause 1.3) for and in lieu of the balance
of any period of notice given by the Company or the Executive (less any
deductions the Company may be required by law to make) or require the
Executive to return to work for the remainder of the notice
period.
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15.
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Termination
of Employment
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15.1
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The employment
of the Executive may be terminated by the Board forthwith without notice
or payment in lieu of notice if the
Executive:
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(a)
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commits any
serious or persistent breach or non-observance of any of the terms,
conditions or stipulations contained in this Agreement having been, in the
case of persistent breaches, warned in advance by the Board in writing of
the same;
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(b)
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is guilty of
any gross default or gross misconduct in connection with or affecting the
business or affairs of the Company or any Associated Company for which he
is required to perform duties;
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(c)
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is guilty of
conduct which brings or is likely to bring himself or the Company or any
Associated Company into disrepute;
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(d)
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is convicted
of an arrestable criminal offence (other than an offence under the road
traffic legislation in the United Kingdom or elsewhere for which a
non-custodial penalty is imposed);
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(e)
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is adjudged
bankrupt or makes any arrangement or composition with his creditors or has
an interim order made against him pursuant to section 252 of the
Insolvency Xxx 0000;
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(f)
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becomes of unsound mind or
becomes a patient under the Mental Health Xxx
0000;
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(g)
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is
or becomes prohibited by law from being a director;
or
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(h)
|
voluntarily
resigns as
a director of the Company otherwise than at the request of the
Board.
|
|
15.2
|
Upon
the termination of his employment (for whatever reason and howsoever
arising) the Executive:
|
|
(a)
|
shall
not take away, conceal or destroy but shall immediately deliver up to the
Company all documents (which expression shall include but without
limitation notes, memoranda, correspondence, drawings, sketches, plans,
designs and any other material upon which data or information is recorded
or stored) relating to the business or
affairs of the Company or any Associated Company or any of their
clients/customers,
shareholders, employees, officers, suppliers, distributors and agents (and
the Executive shall not be entitled to retain any copies or reproductions
of any
such documents) together with any other property belonging to the Company
or any Associated Company (including his car and its keys) which may then
be in his possession or under his
control;
|
|
(b)
|
shall,
at the request of the Board and without prejudice to any rights of the
Executive arising
as a result of the loss of his employment hereunder, immediately resign
without
claim for compensation from office as a director of the Company and any
Associated Company and from any other office held by him in the Company or
any Associated
Company (but without prejudice to any claim he may have for damages for
breach of this Agreement) and in the event of his failure to do so the
Company is hereby irrevocably authorised to appoint some person in his
name and on his behalf to sign and deliver such resignations to the Board
and/or to each such Associated Company;
|
|
(c)
|
shall not at any time
thereafter make any untrue or misleading oral or written statement concerning the business
and affairs of the Company or any Associated Company
nor represent himself or permit himself to be held out as being in any way
connected with or interested in the business of the Company or any
Associated Company
(except as a former employee for the purpose of communicating with
prospective
employers or complying with any applicable statutory
requirements);
|
|
(d)
|
shall
not at any time thereafter use the name "Shire" or any name capable of
confusion therewith (whether by using such names as part of a corporate
name or otherwise) (save for the making of factual statements (subject
always to the provisions
of Clause 13) describing his employment with the Company for the
purposes
of obtaining an alternative remunerated position as defined at Clause
15.4(vii)); and
|
|
(e)
|
shall
immediately repay all outstanding debts or loans due to the Company or any
Associated Company and the Company is hereby authorised to deduct from any
wages (as
defined by section 27 of the Employment Rights Act 1996) of the
Executive a sum equal
to any such debts or loans.
|
|
15.3
|
If the employment of the
Executive under this Agreement is terminated by reason of the
liquidation of the Company for the purpose of reconstruction or
amalgamation or as part of any arrangement for the amalgamation or
reconstruction of the Company not involving insolvency and the Executive
is offered employment with any concern or undertaking resulting from the reconstruction or
amalgamation on terms and conditions which taken as a whole are not
less favourable than the terms of this Agreement then the Executive shall
have no claim against
the Company in respect of such termination.
|
|
15.4
|
(i)
|
Notwithstanding
the provisions of Clauses 1.2, 1.3 and 15.1 of this Agreement, the
Company may
instead, at its sole discretion, terminate the Executive's employment by
giving written notice to him that it is exercising its rights
under this
Clause 15.4 to terminate the employment and make Monthly Payments
(as defined below) to the
|
9
Executive.
The maximum number of Monthly Payments shall be 12 unless notice under Clause 1
has been given before the Company makes any election under this Clause 15.4, and
the Executive has worked part of that notice period, in which case the maximum
number of Monthly Payments shall be reduced accordingly to reflect the remaining
period of notice. The Monthly Payments shall commence on the date such notice
is given to the Executive or such date thereafter as the Company shall
determine and the Executive's employment under this Agreement shall cease on
that day (the "Commencement
Date").
|
(ii)
|
Subject to
adjustments as contemplated in Clause 15.4(iii) below each Monthly Payment
shall be calculated by dividing the Executive's basic salary at the date
notice is given by twelve and adding the Relevant Amount as defined in
Clause 1.3.2. Each Monthly Payment shall then be paid on a monthly basis
subject to such deductions as may be required by law and in accordance
with Clause 15.4(vi) below.
|
|
|
(iii)
|
The Company may instead of paying the part of the Relevant Amount relating to benefits as referred to in 15.4(ii) continue the provision of those benefits which the Executive would otherwise have been entitled to receive during the period of the Monthly Payment. If the Company decides to continue the provision of the benefits, the Monthly Payment shall be reduced accordingly. |
|
(iv)
|
On the
termination of the Executive's employment under this Clause 15, the
Executive's rights to receive shares or exercise rights in relation to (or
calculated by reference to) shares under any relevant bonus or incentive
scheme will be determined in accordance with the rules of the relevant
scheme.
|
|
(v)
|
The Executive
shall be under a duty, beginning on the Commencement Date, to use
reasonable endeavours actively to seek a suitable alternative remunerated
position (defined below) and shall also be required to keep the Company
informed in relation to his search when reasonably
requested.
|
|
(vi)
|
If the
Executive obtains an alternative remunerated position during the period
for payment of the Monthly Payments
then:
|
|
(a)
|
each of the
Monthly Payments still outstanding shall be reduced by the basic monthly
remuneration to which the Executive is entitled, from the alternative
remunerated position, and only the balance shall be due to the
Executive;
|
|
(b)
|
any benefits
provided by the Company (or their value paid in lieu as part of the
Monthly Payments) which are provided by the alternative remunerated
position (on an equivalent basis) shall
cease;
|
|
(c)
|
for the
purposes of calculating the amount of the deduction in respect of
remuneration from the alternative remunerated position, any basic salary
or fees shall be included, together with the value of any pension
provided, but not any entitlement to bonus or the value of any equity or
equity-based incentive arrangements. The value of any entitlement to
pension shall be calculated as the amount which the new employer
contributes to a pension scheme on the Executive's behalf (in the case of
a defined benefit arrangement, being the long term contribution rate,
ignoring any adjustment to reflect an overall deficit or surplus in the
scheme).
|
|
(vii)
|
For the
purposes of this Clause 15.4 "alternative remunerated position" shall mean
any new position, whether under a contract of employment, consultancy
arrangement, non executive appointment or otherwise, whereby the Executive
is directly or indirectly
remunerated.
|
10
|
(viii)
|
The Executive
will not be entitled to receive any payment in addition to the Monthly
Payments in respect of any holiday entitlement that would have accrued
during the period for which the Monthly Payments are made, and will not
accrue any entitlement to pension contributions or bonus during such
period.
|
|
(ix)
|
The Company's
determination as to the value of any benefit or entitlement for the
purposes of this Clause 15.4, shall be binding on the parties in the
absence of manifest error.
|
|
15.5
|
Any
delay or forbearance by the Company In exercising any right of termination
shall not constitute a waiver of
it.
|
|
16.
|
Executive's
Covenants
|
|
16.1
|
The Executive
acknowledges that during the course of his employment with the Company he
will receive and have access to confidential information of the Company
and its Associated Companies (including without limitation those matters
specified in Clause 13.3 of this Agreement) and he will also receive and
have access to detailed client/customer lists and information relating to
the operations and business requirements of those clients/customers and
accordingly he is willing to enter into the covenants described in this
Clause 16 in order to provide the Company and its Associated Companies
with what he considers to be reasonable protection for those
interests.
|
|
16.2
|
In this Clause
16:
|
|
(a)
|
"Restricted Business"
means the Business of the Company and its Associated Companies at
the time of the termination of the Executive's employment with which the
Executive was involved to a material extent at any time during the period
of 12 (twelve) months ending on the Restriction Date and for the purposes
of this Clause the term "Business" shall mean the research,
development, marketing, sale or supply of pharmaceuticals for
administration to humans;
|
|
(b)
|
"Restricted Customer" means any firm,
company or other person who, at any time during the period of 12 (twelve)
months ending on the Restriction Date, was a customer of or in the habit
of dealing with the Company or any Associated Company and with whom the
Executive dealt to a material extent or for whom or which the Executive
was responsible on behalf of the Company or any Associated Company during
that period and in respect of such customer material damage to the
interests of the Company or any Associated Company could occur if such
customer ceased or reduced its business with the Company or any Associated
Company;
|
|
(c)
|
"Restricted Employee" means any person
who, at the Restriction Date was employed by the Company or any Associated
Company at a senior level and who could materially damage the interests of
the Company or any Associated Company if he became employed in any
business concern in competition with the Restricted Business and with whom
the Executive worked closely or about whom the Executive obtained material
detailed information, in either case at any time during the period of 12
(twelve) months ending on the Restriction Date;
and
|
|
(d)
|
"Restriction
Date" means the date of termination of this
Agreement.
|
|
16.3
|
The Executive
will not, for a period of 12 (twelve) months after the Restriction Date,
solicit or endeavour to entice away from the Company or any Associated
Company the business or custom of a Restricted Customer with a view to
providing or receiving goods or services to or from that Restricted
Customer in competition with any Restricted
Business.
|
11
|
16.4
|
The Executive
will not, for a period of 12 (twelve) months after the Restriction Date,
provide goods or services to or otherwise have any business dealings with
any Restricted Customer in the course of any business concern which is in
competition with any Restricted
Business.
|
|
16.5
|
The Executive
will not, for a period of 12 (twelve) months after the Restriction Date,
in the course of any business concern which is in competition with any
Restricted Business offer employment to or otherwise endeavour to entice
away from the Company or any Associated Company any Restricted
Employee.
|
|
16.6
|
The Executive
will not, without the prior written consent of the Board, for a period of
6 (six) months after the Restriction Date, be engaged in or concerned in
any capacity in any business concern which is or might reasonably be
expected to be in competition with any Restricted Business. This Clause
shall not restrain the Executive from being engaged or concerned in any
business concern in so far as the Executive's duties or work shall relate
solely:
|
|
(a)
|
to
geographical areas where the business concern is not in competition with
the Restricted Business; or
|
|
(b)
|
to services or
activities of a kind with which the Executive was not concerned to a
material extent during the period of 12 (twelve) months ending on the
Restriction Date.
|
|
16.7
|
The
obligations imposed on the Executive by this Clause 16 extend to him
acting not only on his own account but also on behalf of any other firm,
company or other person and shall apply whether he acts directly or
indirectly.
|
|
16.8
|
The Executive
hereby agrees that he will at the request and expense of the Company enter
into a direct agreement or undertaking with any Associated Company whereby
he will accept restrictions and provisions corresponding to the
restrictions and provisions in this Clause 16 (or such of them as may be
appropriate in the circumstances) in relation to such activities and such
area and for such a period not exceeding 12 (twelve) months as such
Associated Company may reasonably require for the protection of its
legitimate business interests.
|
|
16.9
|
It is agreed
between the parties that whilst the restrictions set out in this Clause 16
are considered fair and reasonable for the protection of the Company's
business and trade secrets, if it should be found that any of the
restrictions be void as going beyond what is fair and reasonable in all
the circumstances and if by deleting part of the wording or substituting a
shorter period of time or different geographical limit or a more
restricted range of activities for any of the period of time, geographical
limits or ranges or activities set out in this Clause 16 it would not be
void then there shall be substituted such next less extensive period
and/or limit and/or activity or such deletions shall be made as shall
render this Clause 16 valid and
enforceable.
|
|
17.
|
Change
of Control
|
|
17.1
|
For the
purposes of this Clause 17:
|
|
(a)
|
"Relevant
Event" means
either:
|
|
(i)
|
the
termination by the Company of the Executive's employment (other than for
cause in accordance with Clause 15 of this Agreement);
or
|
|
(ii)
|
the
Executive's
resignation where such resignation is as a
consequence of a repudiatory breach of contract by the Company
and amounts to a
constructive dismissal,
|
within the period of
12 (twelve) months following the date of a Change of Control.
12
|
(b)
|
Subject to
Clause 17.6 below "Change of Control" means where any person either alone
or together with any person acting in concert with him obtains control of
the Company as defined in section 840 of the Income and Corporation Xxxxx
Xxx 0000.
|
|
17.2
|
If a Relevant
Event occurs the Company shall pay to the Executive within 14 (fourteen)
days of that Relevant Event a sum equal to the aggregate
of:
|
|
(a)
|
the value of
his then current rate of basic salary for the period of 1 (one) year;
and
|
|
(b)
|
an amount in
lieu of annual bonus to be decided at the absolute discretion of the
Remuneration Committee, as that committee was constituted immediately
prior to the Change of Control, up to the maximum bonus, based on 150%
achievement of group and personal objectives for the bonus year in which
his employment terminates (based on the Executive's salary at the date on
which his employment terminates);
and
|
|
(c)
|
an amount in
lieu of the Company's contributions to the Executive's pension scheme
under Clause 6 of this Agreement for 1 (one) year;
and
|
|
(d)
|
an amount in
respect of the actual cost to the Company of the provision of the benefits
due under Clauses 7 and 8 of this Agreement for 1 (one)
year.
|
For
the
avoidance of doubt, as at the date of this Agreement, the maximum bonus which
would be payable under Clause 17.2(b) is a maximum cash element of one hundred
fifteen per cent (115%) and a maximum share element of sixty-five per cent
(65%). Such limits may be amended by the Company from time to
time.
|
17.3
|
Subject to any
rights accrued at the date of termination of the Executive's employment
under the provisions of any pension scheme of the Company, any payment by
the Company pursuant to this Clause 17 shall be made in full and final
settlement of all and any claims arising from or in connection with the
Executive's employment or its termination or his office as Chief Executive
Officer and its loss in each case in respect of the Company or any
Associated Companies.
|
|
17.4
|
All payments
to be made pursuant to this Clause 17 shall be paid less any necessary
withholdings.
|
|
17.5
|
The Executive
hereby agrees that he shall not, following a payment under this Clause 17,
bring any claim before any court or employment tribunal relating to unfair
dismissal.
|
|
17.6
|
This Clause
shall not apply where in connection with a scheme of reconstruction or
amalgamation or reorganisation of the Company and one or more of its
Associated Companies the Executive refuses an offer of employment on terms
identical in all material respects to those hereunder by the company which
following such reconstruction or reorganisation replaces the Company or
the relevant Associated Companies.
|
|
18.
|
Taxation
|
|
18.1
|
During the
continuance of his employment the Executive may be required to work in the
USA or such other jurisdiction as the Company may request from time to
time (the "Foreign
Jurisdiction").
|
|
18.2
|
The Company
shall ensure that the Executive is covered by a tax equalisation programme
so that, if for any reason the Executive is subject to tax (as a direct
result of business duties) in the Foreign Jurisdiction in respect of his
remuneration under this Agreement which is not creditable in the UK, then
a reconciliation will be undertaken to ensure that, so far
as
|
13
practicable, the net
tax position of the Executive is no worse than it would have been had he only
been subject to UK tax in respect of such earnings.
|
18.3
|
Following the
reconciliation exercise in accordance with Clause 18.2 the Executive shall
repay to the Company any excess income benefits or the Company shall make
any additional tax equalisation payments due to the Executive in the form
of allowances as necessary. If appropriate, such payments shall be
enhanced to allow for any further tax which may be due on
them.
|
|
18.4
|
The Executive
shall be required to consult PricewaterhouseCoopers or such other firm of
professional advisers as the Company may request from time to time about
his tax position in the Foreign Jurisdiction and the Company will bear the
reasonable costs of such consultancy services as well as the cost of
annual tax return preparation services in the UK and the Foreign
Jurisdiction.
|
|
18.5
|
The Executive
Is advised to take specialist tax advice regarding the tax treatment of
personal income and capital gains and the cost of such advice will be
covered by the Company under the provisions of this Clause 18. For the
avoidance of doubt, this Clause 18.5 does not cover amounts payable for
general tax planning and advice, the costs of which are payable by the
Company in accordance with Clause
9.2.
|
|
19.
|
Disciplinary
and Grievance Procedures
|
|
19.1
|
The Executive
shall be expected to maintain the highest standard of integrity and
behaviour. For the purpose of disciplinary and grievance procedures the
Executive's supervisor is the
Board.
|
|
19.2
|
If the
Executive is not satisfied with any disciplinary decision taken in
relation to him he may apply in writing within 14 (fourteen) days of that
decision to the Board whose decision shall be
final.
|
|
19.3
|
If the
Executive has any grievance in relation to his employment he may raise it
in writing with the Board whose decision shall be
final.
|
|
20.
|
Directorship
|
The Executive shall
not save at the request or with the consent of the Board:
|
(a)
|
voluntarily
resign as a director of
the Company;
|
|
(b)
|
do or fail to
do anything which causes him to be prohibited by law from continuing to
act as a director; or
|
|
(c)
|
voluntarily do
or refrain from doing any act whereby his office as a director of the
Company is or becomes liable to be
vacated.
|
The
removal
of the Executive from office as a director of the Company or the failure of the
Company in general meeting to re-elect the Executive as a director of the
Company (if he shall be obliged to retire by rotation or otherwise pursuant to
the Articles of Association) shall terminate the Executive's employment under
this Agreement and such termination shall be without prejudice to any claim
which the Executive may have for damages for breach of this Agreement provided
that the Company was not entitled at the time of such removal or failure to
re-elect to terminate his employment pursuant to Clause 15.1.
|
21.
|
Data
Protection
|
The
Executive consents to the Company or any Associated Company holding and
processing both electronically and manually the data it collects which relates
to the Executive for the
14
purposes
of the administration and management of its employees and its business and for
compliance with applicable procedures, laws and regulations. The Executive also
consents to the transfer of such personal information to other offices the
Company may have or to an Associated Company or to other third parties whether
or not outside the European Economic Area for administration purposes and other
purposes in connection with the Executive's employment where it is necessary or
desirable for the Company to do so.
|
22.
|
Notices
|
|
22.1
|
Any notice to be given under
this Agreement shall be given in writing and shall be deemed to be
sufficiently served by one party on the other if it is delivered
personally or is sent by first class registered or recorded
delivery pre-paid post (air mail if
overseas) addressed to either the Company's registered office for the time
being or the Executive's address as set out in this Agreement (or such
other address as shall be notified to the Company in accordance with this
Clause) as the
case may be.
|
|
22.2
|
Any
notice sent by post shall be deemed (in the absence of evidence of earlier
receipt) to be received 2 (two) days after posting (6 (six) if sent by air
mail) and in proving the time such notice was sent and shall be sufficient
to show that the envelope containing it was properly addressed, stamped
and posted. Any notice delivered personally shall be deemed to be received
when delivered to the address provided for in Clause
22.1.
|
|
23.
|
Miscellaneous
|
|
23.1
|
The
Executive hereby warrants that by virtue of entering into this Agreement
he will not be in breach of any express or implied terms of any contract
or of any other obligations legally binding upon
him.
|
|
23.2
|
Any
benefits provided by the Company to the Executive or his family which are
not expressly referred to In this Agreement shall be regarded as ex gratia
benefits provided at the entire discretion of the Company and shall not
form part of the Executive's contract of
employment.
|
|
23.3
|
The
Company shall be entitled at any time during the Executive's employment to
make deductions from the Executive's salary or from any other sums due to
the Executive from the Company or any Associated Company in respect of any
overpayment of any kind made to the Executive or in respect of any debt or
other sum due from him provided always that reasonable evidence of the
validity of such deductions is provided to the
Executive.
|
|
24.
|
Definitions
and
Interpretation
|
|
24.1
|
In this
Agreement:
|
|
"Articles
of Association"
|
means the
Company's articles of association in force at the date hereof and from
time to time thereafter;
|
|
|
"Associated
Company"
|
means a
company which is from time to time a subsidiary or a holding company of
the Company or a subsidiary (other than the Company) of a holding company
of the Company. In this definition "subsidiary" and "holding company" have
the same meaning as in section 736 of the
Companies Xxx 0000;
|
|
|
"Board"
|
means the
board of directors for the time being of the Company including any duly
appointed committee thereof or the directors present at a meeting of the
directors of the Company at which a quorum is present but excluding the
Executive (as appropriate);
|
15
| "Group" |
means the
Company and the Associated Companies; and
|
|
|
"Remuneration
Committee"
|
means the remuneration committee of the Board from time to time. |
|
24.2
|
The headings
in this Agreement are for convenience only and shall not affect its
construction or interpretation.
|
|
24.3
|
References in
this Agreement to Clauses are references to clauses in this
Agreement.
|
|
24.4
|
Any reference
in this Agreement to the employment of the Executive is a reference to his
employment by the Company whether or not during the currency of this
Agreement.
|
|
24.5
|
Any reference
in this Agreement to a person shall where the context permits include a
reference to a
body corporate and to any unincorporated body of
persons.
|
|
24.6
|
Any word in
this Agreement which denotes the singular shall where the context permits
include the plural and vice versa and any word in this Agreement which
denotes the masculine gender shall where the context permits include the
feminine and/or the neuter genders and vice
versa.
|
|
24.7
|
Any reference
in this Agreement to a statutory provision shall be deemed to include a
reference to any statutory
amendment, modification or re-enactment of
it.
|
|
24.8
|
This Agreement
supersedes all previous agreements between the parties or any Associated
Company relating to the employment of the
Executive.
|
16
IN WITNESS whereof this Agreement has been
executed as a deed by the parties hereto and is intended and hereby delivered as
a deed on the date first above written.
|
Executed as a
deed by
|
) | |
| SHIRE LIMITED acting by a | ) | /s/ Xxxxxx Xxxxxxxxxxxx |
| director and its secretary/ | ) | /s/ Tatjana May |
| two directors: | ||
|
Executed as a
deed by
|
) | |
| XXXXX XXXXXXX | ) | /s/ X X Xxxxxxx |
| in the presence of: | ) |
| Signature of witnesses: | /s/ X.X. Xxxxx | |
| Name: | X.X. XXXXX | |
| Address: | 000 XXXXXX XXXX | |
| XXXXXXXXXXXXX XXXXX | ||
| XXXXXXXXXXX XX0 0XX | ||
| Occupation: | SECRETARY |
17
