EXHIBIT (e)(10)
DATE
21 November 2003
PARTIES
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BIORELIANCE LIMITED a company registered in Scotland (registered no.
122851) whose registered office is at Stirling University Innovation Park,
Xxxxxxxxx Xxxx, Xxxxxxxx, XX0 0XX, Xxxxxx Xxxxxxx (“the Company”); and
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XXXXXXX X. XXXXXXXX, Ph.D., of Xxx Xxxxxxxx, Xxxxxxxx, Xxxxxxxx, XX0 0XX,
Xxxxxx Xxxxxxx. (“the Executive”)
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OPERATIVE PROVISIONS
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| 1. |
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INTERPRETATION |
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| 1.1 |
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In this Agreement the following words and expressions shall have the
following meanings: |
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“the Board” means the board of directors of the Company and, where
applicable, any Group Company or the Corporation, as from time to time
constituted or any duly appointed committee of the Board; |
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“the Company” means the Company of directors of the Company and, where
applicable, any Group Company or subsidiary of the Company as from time
to time constituted or any duly appointed committee of the Company; |
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“the Corporation” means Bioreliance Corporation a company incorporated in
Delaware, USA, whose headquarters is at 00000 Xxxxxxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx 00000 XXX; |
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“Group Company” means any company which is a holding company of the
Company or a subsidiary undertaking of the Company or of any such holding
company (as such expressions are defined in sections 258, 259 and 736
Companies Act 1985); |
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“Termination Date” means the date of the termination of the employment of
the Executive hereunder, howsoever caused. |
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| 1.2 |
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In this Agreement (unless the context otherwise requires): |
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(A)
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any reference to any statute or statutory provision shall be
construed as including reference to any modification, re-enactment
or extension of such statute or statutory provision for the time
being in force or to any subordinate legislation made under the
same;
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(B)
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any reference to a clause is to a clause of this Agreement;
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(C)
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the expression “directly or indirectly” means (without
prejudice to the generality of the expression) either alone or
jointly with or on behalf of any other person, firm or body
corporate and whether on his own account or in partnership with
another or others or as the holder of any interest in or as officer,
employee or agent of or consultant to any other person, firm or body
corporate.
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| 1.3 |
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The headings contained in this Agreement are for convenience only and do
not form part of and shall not affect the construction of this Agreement
or any part of it. |
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| 2. |
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APPOINTMENT |
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| 2.1 |
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The Company hereby appoints the Executive and the Executive agrees to
serve the Company as Senior Vice President, Europe and International. |
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| 2.2 |
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As Senior Vice President, Europe and International, the Executive shall
perform such duties as may be assigned to the Executive from time to time
by the President and Chief Executive Officer or the Board, including, but
not limited to the following: developing and executing plans toward
attainment of current and long-range objectives, including achieving
revenue, revenue growth and income objectives, maximum return on invested
capital, and quality, client satisfaction and employee development goals;
developing financial plans and budgets; overseeing all reporting
functions; co-ordinating activities with other vice presidents and
supporting departmental directors; supporting Corporate activities
including market analyses, strategic planning, R&D planning and project
selection, engagement and assessments of potential partners, and the like;
supporting the evaluation and analysis of acquisition opportunities, if
any, as may be identified from time to time by the President and Chief
Executive Officer or the Board; developing and documenting novel or
typical service programs, procedures, methodologies and the like; meeting
with clients, understanding their product and production methods and
developing timely and cost-effective strategies acceptable to them and to
various national regulatory authorities; designing major projects and, as
appropriate, writing major project plans; closing key proposals; directing
complex technical activities, in particular projects of significant scale
and scope; solving challenging technical, regulatory and service problems;
building client relationships; and anticipating follow-on client
engagements. These duties may be amended, removed or added to from time
to time by the President and Chief Executive Office or the Board. |
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| 3. |
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TERM AND NOTICE |
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| 3.1 |
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The employment of the Executive shall commence on the date of this
Agreement and, subject to the provisions of clause 16, continue thereafter
unless and until terminated by: |
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(A)
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the Company giving to the Executive not less than twelve
months’ notice; or
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(B)
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the Executive giving to the Company not less than 90 days’
notice.
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| 3.2 |
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The Company reserves the right at any time, in its absolute discretion,
to terminate the Executive’s employment by giving notice to the Executive
that it intends to pay the Executive in lieu of his notice period. The
payment shall consist of the Executive’s basic |
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salary for the relevant period and under twelve-month circumstances shall
be made in twelve equal monthly installments and shall be subject to
deductions for tax and national insurance contributions as appropriate.
Such payments will be reduced by any amount which the Executive earns
through new employment. The Executive is obliged to inform the Company,
its successors and assigns, in writing within ten calendar days of his
acceptance of such new employment and include in this notice what his
base compensation and expected start date are. For the relevant period,
the Company will continue to pay premiums on behalf of the Executive and
will continue to lease his company car until such time as the Executive
obtains employment that provides similar benefits. The Executive agrees
to accept any such payment in lieu of notice as being in full and final
settlement of any claim he may have arising out of his employment, its
termination and/or the resignation of any directorship save for any
statutory claims that he may have. |
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| 3.3 |
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The Company may make a payment pursuant to clause 3.2 regardless of
whether and by whom notice under clause 3.1 has been given and in respect
of the whole or the balance of the notice period which would otherwise be
required under that clause. |
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| 3.4 |
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For the avoidance of doubt, the right of the Company to make a payment in
lieu of notice does not give rise to any right of the Executive to receive
such payment. |
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| 3.5 |
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For the purposes of the Employment Rights Xxx 0000, the Executive’s
period of continuous employment with the Company commenced in February
1993. |
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| 4. |
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DUTIES |
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| 4.1 |
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The Executive shall during the continuance of his employment: |
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(A)
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faithfully and diligently perform those duties and exercises
such powers consistent with them in relation to the business of the
Company or of any Group Company as may from time to time be vested
in or assigned to him by the Board;
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(B)
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well and faithfully serve the Company and any relevant Group
Companies to the best of his ability and carry out his duties in a
proper and efficient manner and use his bet endeavors to promote and
maintain the interests and reputation of the Company;
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(C)
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work normal office hours of 9 a.m. to 5 p.m. together with
such additional hours as the Company reasonably deems necessary for
the proper performance of his duties, subject to a minimum of 35
hours per week on average in each year of the Executive’s
employment. The Executive agrees for the purposes of the Working
Time Regulations 1998 whenever necessary to work longer than 48
hours a week on average and to give 3 months’ notice of any
revocation of such agreement;
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(D)
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perform his duties principally at the Stirling University
Innovation Park, or at such other location as the Company shall
reasonably require whether on permanent or temporary basis;
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(E)
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devote the whole of his working time, skill, ability and
attention to the business of the Company;
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(F)
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in all respects conform to and comply with lawful directions
and regulations given and made by the Board;
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(G)
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in all respects conform to and comply with relevant rules
and/or codes issued by or on behalf of any Recognized Stock
Exchange;
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(H)
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travel to such places (whether inside or outside the United
Kingdom) in such manner and on such occasions and for such periods
as the Board may from time to time reasonably require; and
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(I)
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if so required by the Board, perform his duties hereunder
jointly with such other person or persons as the Board may from time
to time reasonably require.
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| 4.2 |
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The Executive shall promptly disclose forthwith to the Company any and
all information he has or acquires which relates or may relate to the
business or any potential business of the Company, save that this
obligation shall not apply to information supplied to the Executive under
an obligation of confidentiality where it would be a breach of that
obligation to disclose the information hereunder. |
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| 4.3 |
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The Executive shall immediately upon the Company’s request supply any and
all information which the Company may reasonably require in order to be
able to comply with any statutory or regulatory provision or stock
exchange rule or requirement, including for the avoidance of doubt the
Listing Rules of the UK Listing Authority. |
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| 4.4 |
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For the avoidance of doubt, subject always to the Executive retaining the
same or a similar level of responsibility and authority, the Company may,
in its absolute discretion, vary from time to time the functions and job
title of the Executive. |
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| 5. |
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SALARY |
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| 5.1 |
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The Company shall pay to the Executive by way of remuneration for his
services under this Agreement an annual base salary of £100,000 (inclusive
of any director’s fees payable to him by the Company) which shall accrue
from day to day and shall be payable in equal monthly installments in
arrears on the customary pay period of the Company (or pro rata where the
Executive is only employed during part of the month). |
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| 5.2 |
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The Company shall be entitled to deduct from any sums payable to the
Executive (including salary): |
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(A)
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all sums from time to time owed by the Executive to the
Company howsoever arising; and
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(B)
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all appropriate deductions for income tax, employee national
insurance contributions and all other statutory deductions due in
respect of his salary and any other benefits provided to him by the
Company.
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| 6. |
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BONUS |
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The Executive may be entitled to participate in any discretionary
performance bonus plan operated by the Company which terms are determined
each year by the Board at its absolute discretion. |
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CAR |
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| 7.1 |
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The Company shall provide the Executive with a fully expensed lease motor
car of a make and model commensurate, in the reasonable opinion of the
Board, with his position for his business and personal use. |
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| 7.2 |
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The Company shall bear the cost of insuring, testing, taxing, repairing,
and maintaining such full expensed lease car. |
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| 7.3 |
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The Executive shall: |
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(A)
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take good care of the car, including arranging for its
maintenance and procure that the provisions and conditions of any
policy of insurance relating to the car are observed; and
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(B)
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comply with any reasonable directions and regulations of the
Company for the time being in force relating to the company cars;
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(C)
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return the car, its keys and all associated documentation to
the Company’s registered office immediately upon the termination for
whatever reason of his employment under this Agreement (or at any
other reasonable time, if so requested, for the purposes of
inspection and/or maintenance). The Company shall be entitled to
withhold any sums owing to the Executive on the termination of his
employment until this obligation is complied with and if the
Executive does not comply immediately with this clause he shall be
required to account to the Company for any resulting losses;
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(D)
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not do anything which would or might void of prejudice any
policy of insurance or hire/rental/leasing agreement taken out by
the Company in respect of the Executive or the Car and shall
promptly inform the Company of any matter which may need to be
reported to the insurer (including without limitation if he loses
his driver’s license and/or if he is involved in a road traffic
accident, however minor and regardless of fault); and
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(E)
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be responsible for any fines incurred for motoring offences.
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| 7.4 |
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If the Executive loses his driver’s license, for whatever reason, or
otherwise becomes unable legally to drive, the Executive shall promptly
return the Car (together with keys and associated documentation) to the
Company’s registered office and the Company shall have no obligation to
provide the Executive with any company car nor any car allowance (or
payment in lieu of this provision) for the duration of his inability to
drive legally. |
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| 8. |
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STOCK OPTIONS |
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| 8.1 |
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The Executive will be entitled to participate in the 1997 Incentive Plan
(as amended and restated) or such share schemes as the Board may operate
for employees of comparable status and upon such terms as the Board may
from time to time determine. |
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| 8.2 |
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The Executive shall have no claim against the Company or Group Company in
connection with termination of his employment in relation to the provision
of any agreement or otherwise which has the effect of requiring the
Executive to sell or give up shares, securities, options or rights to
acquire the same and/or which causes any such options or rights to lapse
or reduce in value. |
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| 9. |
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EXPENSES |
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The Company shall reimburse the Executive all reasonable traveling, hotel
and other out of pocket expenses properly incurred by him in or about the
performance of his duties under this Agreement subject to his compliance
with the Company’s then current guidelines, if any, relating to expenses
and to the production, if required, of receipts, vouchers or other
supporting documents. |
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| 10. |
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PENSIONS HEALTH LIFE AND MEDICAL INSURANCE |
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| 10.1 |
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The Executive shall during his employment be entitled to participate in
any: |
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(A)
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arrangements for private medical treatment or medical health
insurance with BUPA (which policy will also benefit the Executive’s
wife); and
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(B)
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life assurance providing for a payment equal to four times
basic salary pursuant to clause 5.1 for death in service
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(together “Insurance Schemes”) operated from time to time by or for the
Company for the benefit of employees of the Company or any Group Company
of equivalent status to the Executive, subject to any applicable rules
and conditions and subject to the Company’s right to terminate or
substitute other scheme for such schemes or amend the scale, and level of
benefits provided under the schemes. To the extent that there is any
disparity between the rules and conditions of the relevant Insurance
Scheme and the terms of this Agreement the relevant scheme rules and
conditions shall take precedence. The company shall not have any
liability to pay any benefit to the Executive (or any family member)
under any Insurance Scheme unless it receives payment of the benefit from
the insurer under the scheme and shall not be responsible for providing
the Executive (or any family member) with any benefit under an Insurance
Scheme in the event that the relevant insurer refuses for whatever reason
to pay or provide or to continue to pay or provide that benefit to the
Executive (or family member). |
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| 10.2 |
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Any Insurance Scheme which is provided for the Executive is also subject
to the Company’s right to alter the cover provided or any term of that
scheme or to cease to provide (without replacement) the scheme at any time
if in the opinion of the Board (after the Executive has been examined by a
medical practitioner nominated by the insurers or |
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by the Company) the state of health of the Executive is or becomes such
that the Company is unable to insure the benefits under the scheme at the
normal premiums applicable to a person of the Executive’s age. |
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| 10.3 |
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During his employment hereunder the Company shall each month pay into
such personal pension plan of the Executive as he shall direct an amount
calculated (and accruing on a daily basis) at an annual rate equivalent to
the amount paid by the Executive into his personal pension plan up to a
maximum of 9 percent of the Executive’s salary for the time being payable
under clause 5.1. |
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| 10.4 |
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No contracting out certificate is in force in relation to this
employment. |
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| 11. |
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ILLNESS AND KEY MAN INSURANCE |
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| 11.1 |
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In the event of illness or other incapacity beyond his control as a
result of which he is unable to perform his duties the Executive shall
remain entitled to receive his salary in full for any continuous or
aggregate period of thirteen weeks’ absence in any consecutive twelve
month period subject to: |
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(A)
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compliance with the Company’s procedures relating to sickness
notification, statutory sick pay and self-certification to cover
absence from work due to sickness or other incapacity and to the
provision of medical certificates and/or (at the Company’s
discretion) undergoing a medical examination by a doctor appointed
by the Company. The Executive shall cooperate in ensuring the
prompt delivery of such report to the Company and authorize his own
medical practitioner to supply all such information as may be
required by that doctor and, if so requested by the Company,
authorize his medical practitioner to disclose to the Company his
opinion of the Executive’s state of health;
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(B)
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a deduction (at the Company’s discretion) from his salary of
an amount or amounts equal to any statutory sick pay or social
security benefits to which the Executive is entitled;
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(C)
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a deduction (at the Company’s discretion) from his salary of
an amount or amounts equal to any payment made to the Executive
under any health insurance arrangements effected from time to time
by the Company and/or any Group Company on his behalf.
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| 11.2 |
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The Executive hereby covenants with the Company on behalf of himself and
his personal representatives at all times fully and effectively to comply
with the terms of any insurance policy taken out by the Company or any
Group Company on his life or in respect of his position as a director
and/or officer of the Company and further undertakes (notwithstanding that
this Agreement has been terminated or has come to an end) to co-operate
fully with and assist the Company or any applicable Group Company in
relation to any claim(s) made or to be made in connection with such
insurance policy (including without limitation submitting to a medical
examination). |
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| 11.3 |
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Other incapacity for any continuous or aggregate period of thirteen weeks
in any period of twelve months, notwithstanding any other provisions of
this Agreement, the Company may terminate the Executive’s employment upon
13 weeks’ written notice to him and during that period the Executive shall
not have any entitlement to receive his salary or any bonus payment but
shall otherwise be entitled to his contractual benefits under this
Agreement. |
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| 12. |
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OTHER BUSINESS INTERESTS |
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| 12.1 |
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The Executive shall not during the continuance of his employment (whether
during or outside working hours) without the prior consent in writing of
the Board, be directly or indirectly engaged, concerned or interested in
any business, profession or occupation other than the Company or any Group
Company in accordance with the terms of this Agreement provided that
nothing in this clause 12 shall prohibit the Executive form being: |
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(A)
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the holder of not more than three per cent of any class of
stock, shares or debentures or other securities in any company which
is listed and/or dealt in on the London Stock Exchange or on the
Alternative Investment Market of such stock exchange or other
recognized investment exchange (as so declared pursuant to section
285 of the Financial Services and Markets Act 2000); or
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(B)
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interested as shareholder or director only in such companies
as the Board from time to time agrees in writing, such agreement not
to be unreasonably withheld or withdrawn so long as none of such
interests of the Executive shall prejudice the business interests of
the Company or of any Group Company and for so long as the Executive
continues to comply with the provisions of clause 12.
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| 12.2 |
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The Executive shall not during the continuance of his employment (except
with the prior written consent of the Board) introduce to any other person
firm or company business of any kind which could appropriately be dealt
with by the Company or any Group Company, nor shall he have any financial
interest on or derive any financial benefit from any contracts made by the
Company or any Group Company with any third party. |
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| 13. |
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HOLIDAYS |
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| 13.1 |
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The Executive shall be entitled to 26 working days’ holiday (in addition
to the normal bank and other public holidays) in each calendar year
commencing on 1 January in each year (which shall accrue on a monthly
basis) pro rata according to the number of days worked. Holidays shall be
taken at such times as the Company shall consider most convenient having
regard to the requirements of the Company’s business. |
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| 14. |
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CONFIDENTIAL AND BUSINESS INFORMATION, NON-COMPETITION |
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| 14.1 |
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In addition to and without prejudice to the Executive’s common law
obligations to keep information secret, by signing below, the Executive
acknowledges his ongoing and continuing obligation to abide by the
Confidentiality, Trade Secrets and Non-competition |
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Agreement that he executed on 6 September 1999 (“Trade Secrets
Agreement”), which is attached hereto as Exhibit 1 and incorporated
herein by references. |
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| 14.2 |
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Notwithstanding the obligations and restrictions contained in this clause
14, nothing in this Agreement shall operate to prevent the Executive
making a “protected disclosure” pursuant to the Part IVA of the Employment
Rights Act of 1996. |
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| 14.3 |
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The obligations of the Executive under this clause 14 shall continue to
apply after the termination of the Executive’s employment (howsoever
terminated). |
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| 15. |
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CHANGE OF CONTROL |
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| 15.1 |
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Notwithstanding any other provision in this Agreement, if there is a
Change of Control of the Corporation during the term of this Agreement,
and within twelve months of the Change in Control either (1) the Executive
is given notice of termination by the Company (other than pursuant to
clause 16.2) or (2) the Executive’s responsibilities are significantly
reduced, the Executive will be entitled to serve written notice on the
Company terminating his employment forthwith and shall then be entitled to
the compensation and benefits set forth below: |
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(A)
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Base Compensation: The Company shall pay the Executive
sixteen months of his then current base salary under clause 5.1.
This compensation will be paid in two parts, as follows: (a) an
initial lump-sum payment of eight months of base salary will be paid
within ten working days of termination of employment and (b)
beginning six months after termination of employment, equal monthly
payments for eight months thereafter. This second payment in
section (b) will be correspondingly reduced by any base compensation
payments the Executive receives through new employment. The
Executive is obligated to inform the Company, its successors and
assigns, in writing within ten calendar days of his acceptance of
such new employment and include in this notice what his base
compensation and expected start date are. However, if the
Executive’s base compensation at such new employment is equal to or
exceeds his prior base salary at the Company, the Executive may
simply confirm this fact in the notice in lieu of disclosing the
actual new base compensation figure.
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(B)
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Stock Options: The disposition of any and all stock options
granted by the Corporation to the Executive will be governed by the
1997 Incentive Plan (as amended and restated).
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(C)
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Bonus Compensation: The Company shall at its discretion pay
to the Executive, within thirty calendar days of termination, any
performance bonus to which the Board deem payable to the Executive,
pro-rated to reflect the date of termination.
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(D)
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Medical Benefits: If the Executive elects to continue
medical benefits coverage under the UK Company’s Private Healthcare
program, the Company will pay the applicable premium for a period of
the lesser of sixteen months or until such time as the Executive
obtains other employment that provides private healthcare coverage,
provided the Executive and any of his eligible dependants elect the
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Company’s Private Healthcare program. This provision is otherwise
subject to all applicable UK Company Private Healthcare program
continuation requirements and does not alter the Company’s right to
amend or terminate its medical plan.
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(E)
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Other Benefits: The Company will continue to provide other
benefits current at the time of termination, e.g. fully expensed
lease car, for a period of the lesser of sixteen months or until
such time as the Executive obtains other employment that provides
similar benefits.
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| 15.2 |
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“Change in Control” for purposes of this Agreement shall be deemed to
have occurred if the Corporation is subject to an acquisition in
accordance with Section 2.12(1) of the Corporation’s 1997 Incentive Plan
(as amended and restated), which is attached hereto as Exhibit 2. |
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| 15.3 |
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The privileges, compensation, and benefits set forth in this clause 15,
survive the expiration of this Agreement as lone as there is a Change in
Control as herein defined during the term of this Agreement. |
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| 15.4 |
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All compensation paid by the Company pursuant to this clause will be
subject to appropriate deductions of tax and national insurance. |
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| 16. |
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TERMINATION |
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| 16.1 |
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If the Executive terminates his employment by giving notice pursuant to
clause 3.1, the Executive shall only be entitled to base compensation
through the last day actually worked as well as any bonus compensation for
which the work period and performance criteria have been fully met. The
Board may provide the Executive with additional compensation, if the Board
in its discretion deems such additional compensation warranted. |
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| 16.2 |
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The employment of the Executive may be terminated by the Company without
notice or payment in lieu of notice if: |
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(A)
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the Executive is guilty of willful misconduct or commits any
serious or (having been given notice in writing) persistent breach
or non-observance of any of his obligations to the Company or any
Group Company (whether under this Agreement or otherwise);
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(B)
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the Executive refuses or neglects to comply with any lawful
acts or directions given to him by the Board;
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(C)
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the Executive is guilty of any serious breach or
non-observance of any of the provisions of this Agreement or
directions of the Board or relevant rules and/or codes issued by or
on behalf of any Recognized Stock Exchange or is guilty of any
continued or successive breaches or non-observance of any of such
provisions or directions in spite of written warning to the contrary
by the Board;
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(D)
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the Executive is convicted of any criminal offence by a court
of competent jurisdiction (other than a minor motoring offence for
which a fine or other non-custodial penalty is imposed);
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(E)
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the Executive commits any act of theft or other dishonesty
either at or outside work;
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(F)
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the Executive carries out or neglects to carry out any action
which in the reasonable opinion of the board may seriously damage
the interests of the Company or Group or willfully or negligently
breaches any legislation or any regulation to which the Company or a
Group Company may be subject which may result in any penalties being
imposed on him or any directors of the Company or Group Company;
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(G)
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the Executive commits any act of deliberate discrimination or
harassment on grounds of race, sex or disability;
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(H)
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the Executive has engaged in the unlawful use of narcotics;
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(I)
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the Executive has engaged in abusive use of alcohol to a
degree, or in a manner, that would materially and adversely affect
the performance of the Executive’s assigned work or degrade the
reputation of the Company;
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(J)
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the Executive is guilty of any breach or non-observance of
any of the terms of the Trade Secrets Agreement;
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(K)
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the Executive is adjudged bankrupt or enters into any
composition or arrangement with or for the benefit of his creditors
including a voluntary arrangement under this Insolvency Xxx 0000;
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(L)
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the Executive becomes of unsound mind or a patient for the
purpose of any statute relating to the mental health;
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(M)
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the Executive is convicted of an offence under the Criminal
Justice Xxx 0000 (or the Financial Services Authority becomes
entitled to impose a penalty on the Executive pursuant to section
123 of the Financial Services and Markets Act 2000) or the Executive
is otherwise convicted or found liable under any other present or
future statutory enactment or regulation relating to insider dealing
and/or market abuse;
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(N)
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the Executive becomes prohibited by law or is disqualified or
is liable to be disqualified from being a director;
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(O)
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the Executive resigns as a director of the Company other than
at the request of the Company; or
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(P)
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the Executive commits any other act warranting summary
termination at common law including (but not limited to) any act
justifying dismissal without notice in the
terms of the Company’s generally-applicable Disciplinary Rules
(receipt of a copy of which the Executive hereby acknowledges).
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| 16.3 |
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For the avoidance of doubt, the parties acknowledge that it shall not
constitute a repudiatory breach of contract on the Company’s part
entitling the Executive to resign and claim constructive dismissal if
either: |
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(A)
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the members of the Company in general meeting vote that the
Executive be removed from office as a director of the Company; or
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(B)
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the Executive, upon retiring as a director by rotation
pursuant to the Articles of Association of the Company, is not
re-elected by members of the Company in general meeting.
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| 16.4 |
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The employment of the Executive shall automatically terminate on the day
upon which the Executive reaches the age of State Retirement Age or such
lower age as may be the Company’s normal retirement age for senior
executives from time to time. No agreement which may be reached between
the Company and the Executive for him to work past that age shall affect
his normal retirement age. |
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| 16.5 |
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The termination of the Executive’s employment hereunder for whatsoever
reason shall not affect those terms of this Agreement which are expressed
to have effect after such termination and shall be without prejudice to
any accrued rights or remedies of the parties. |
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| 16.6 |
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On the termination of the Executive’s employment, or at any other time in
accordance with instructions given to him by the Company, the Executive
will immediately return to the Company all equipment, correspondence,
records, specifications, software, models, notes, reports and other
documents and any copies thereof and any other property belonging to the
Company (including but not limited to the Company car keys, credit cards,
keys and passes) which are in the Executive’s possession or under his
control. The Company may withhold any sums owing to the Executive on the
termination of his employment until the obligations in this clause 12.4
have been complied with and if he does not comply with this clause 12.4,
he shall be required to account to the Company for any resulting losses. |
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| 16.7 |
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After notice of termination has been given by either party or if the
Executive seeks to resign without notice or by giving shorter notice than
is required under clause 3, provided that the Company continues to pay the
Executive his basic salary, and to provide all contractual benefits until
his employment terminates in accordance with the terms of this Agreement,
the Company has absolute discretion for up to six months of the notice
period to: |
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(A)
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exclude the Executive from such of the premises of the
Company and/or Group Company as the Board may direct;
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(B)
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instruct him not to communicate with suppliers, customers,
employees, agents or representatives of the Company or Group
Company; and/or
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(C)
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instruct him to perform some only or none of his duties under
this Agreement.
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| 16.8 |
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During any such period during which the Company exercises its rights
under clause 17.6, the Executive agrees to remain bound by all his
contractual obligations owed to the Company under this Agreement
(including for the avoidance of doubt but without limitation clause 13),
as well as all common law duties owed by him to the Company as an
employee, including without limitation his duty of care, fidelity,
obedience and good faith. |
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| 17. |
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RESIGNATION OF OFFICES |
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| |
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The Executive shall immediately upon the earlier of termination of his
employment or notice of termination being served by either party in
accordance with this Agreement give written notice resigning forthwith as
a director or trustee or from any other office he may hold from time to
time with the Company and/or any Group Company or arising from his
engagement by the Company and/or any Group Company without any further
compensation. |
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| 18. |
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GRIEVANCE AND DISCIPLINARY PROCEDURES |
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| 18.1 |
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In the event of the Executive wishing to seek redress of any grievance
relating to his employment he should lay his grievance before the Company
in writing, who will afford the Executive the opportunity of a full
hearing before the Company or a committee of the Company whose decision on
such grievance shall be final and binding. |
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| 18.2 |
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In the event that any disciplinary action is to be taken against the
Executive, any hearing in respect thereof will be conducted by such
director of the Company as the Company may in its reasonable discretion
nominate. If the Executive seeks to appeal against any disciplinary
action taken against him he should do so to the Company submitting full
written grounds for his appeal to the Chairman within seven days of the
action appealed against. The decision of the Company or a delegated
committee thereof shall be final and binding. For the avoidance of doubt,
the Executive has no contractual right to either a disciplinary hearing or
appeal. |
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| 18.3 |
|
The Company may in its absolute discretion suspend the Executive from
some or all of his duties and from the Company and or require him to
remain away from work during any investigation conducted into an
allegation relating to the Executive’s conduct or performance. |
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|
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| 19. |
|
INVENTIONS AND IMPROVEMENTS |
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|
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| 19.1 |
|
For the purposes of this clause 15 the following words and expressions
shall have the following meanings: |
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“Intellectual Property Rights” means any intellectual property, including
without limitation, trade xxxx, service xxxx, business name, company
name, trade name, Invention, patent, utility model, copyright, database
right, design right (whether registered or unregistered), semiconductor
topography right, know-how, trade secret, get-up, logo, slogan, internet
domain name, e-mail address, information technology and any |
13
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| |
|
right and form of protection of a similar or analogous nature (whether
registered or unregistered) or having similar effect to any of the
foregoing and applications for any such rights, as may exist anywhere in
the world. |
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|
“Invention” means any new or improved program, computer software (source
and object code), method, idea, concept, experimental work, theme,
invention, discovery, process, model, formula, prototype, sketch,
drawing, plan, composition, design, configuration, improvement or
modification of any kind conceived, developed, discovered, devised or
produced by the Executive alone or with one or more others during his
employment under this Agreement and which pertains to or is actually or
potentially useful to the activities from time to time of the Company or
any product or service of the Company or which pertains to, or results
from any work which the Executive or any other employee of the Company
may do hereafter during his employment under this Agreement for the
Company. |
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|
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| 19.2 |
|
The Executive shall promptly disclose and deliver to the Company in
confidence full details of each Invention (whether or not the Executive
considers that by virtue of section 39 Patents Xxx 0000 rights to such
Invention fail to vest in the Company) to enable the Company to determine
whether rights to such Invention vest in the Company, upon the making,
devising or discovering of the same and shall at the expense of the
Company give all such explanations, demonstrations and instructions as the
Company may deem appropriate to enable the full and effectual working,
production and use of the same. To the extent that by virtue of section
39 Patents Xxx 0000 rights to such Invention vest in the Executive the
Company shall return to the Executive any documentation provided by the
Executive pursuant to this clause 19.2 and the Company shall keep such
details confidential unless or until such time as such details are in or
enter the public domain, other than by a breach of this Agreement. |
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|
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| 19.3 |
|
The Executive hereby assigns (in so far as title has not automatically
vested in the Company through the Executive’s employment under this
Agreement) to the Company with full title guarantee by way of future
assignment all copyright, database right, design right and other similar
rights for the full terms (including any extension or renewals thereof)
thereof throughout the world in respect of all works, designs or materials
(including, without limitation, source code and object code for software)
originated, conceived, written or made by the Executive during the period
of his employment under this Agreement (except only those works or designs
originated, conceived, written or made by the Executive: (i) wholly
outside his normal working hours under this agreement or (ii) which are
wholly unconnected with any business activity undertaken or planned to be
undertaken by the Company to hold unto the Company absolutely. The
aforementioned assignment shall include the right to xxx for damages
and/or other remedies in respect of any infringement (including prior to
the date hereof). |
| |
|
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| 19.4 |
|
The Executive hereby irrevocably and unconditionally waives in favor of
the Company any and all moral rights conferred on him by Chapter IV of
Part I of the Copyright Designs and Patents Xxx 0000 for any work in which
copyright or design right is vested in the Company whether by this clause
19 or otherwise. |
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|
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| 19.5 |
|
The Executive shall, without additional payment to him (except to the
extent provided in section 40 Patents Xxx 0000, or any similar provision
of applicable law) at the request and |
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| |
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expense of the Company and whether or not during the continuance of his
employment, promptly execute all documents and do all acts, matters and
things as may be reasonably necessary or desirable to enable the Company
or its nominee to obtain, maintain, protect and enforce any Intellectual
Property Right vested in the Company (save only to the extent that any
Intellectual Property Rights fail to vest in the Company by virtue of S39
Patents Act 1977) in any or all countries relating to the Intellectual
Property Right and to enable the Company to exploit any Intellectual
Property Right vested in the Company. |
| |
|
|
| 19.6 |
|
The Executive shall not do anything (whether by omission or commission)
during his employment under this Agreement or at any time thereafter to
affect negatively or imperil the validity of any Intellectual Property
Right owned by the Company or its nominee, and in particular the Executive
shall not disclose or make use of (except as reasonably necessary in the
course of his normal duties) any Invention which is the property of the
Company without the prior written consent of the Company. The Executive
shall during or after the termination of his employment with the Company,
at the request and expense of the Company, provide all reasonable
assistance in obtaining, maintaining and enforcing the Intellectual
Property Right or in relating to any proceeding relating to the Company’s
right, title or interest in any Intellectual Property Right. |
| |
|
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| 19.7 |
|
Without prejudice to the generality of the above clauses, the Executive
hereby irrevocably authorizes the Company to appoint a person to be his
attorney in his name and on his behalf to execute any documents and do any
acts, matters, or things as may be necessary for or incidental to grant
the Company the full benefit of the provisions of this clause 19. |
| |
|
|
| 19.8 |
|
The obligations of the Executive under this clause 19 shall continue to
apply after the termination of his employment (howsoever terminated). |
| |
|
|
| 19.9 |
|
For the avoidance of doubt, nothing in this agreement shall oblige the
Company to seek protect for or exploit any Intellectual Property Right. |
| |
|
|
| 20. |
|
DATA PROTECTION |
| |
|
|
| 20.1 |
|
The Company will hold computer records and personnel files relating to
the Executive. These will include the Executive’s employment application,
references, bank details, performance appraisals, holiday and sickness
records, salary review and remuneration details and other records(which
may, where necessary, include sensitive data relating to the Executive’s
health and data held for ethnic monitoring purposes). The Company
requests such personal data for personnel, administration and management
purposes and to comply with its obligations regarding the keeping of
employee/worker records. The Executive’s right of access to this data is
as prescribed by law. |
| |
|
|
| 20.2 |
|
The Executive hereby agrees that the Company may process personal data
relating to him for personnel, administration and management purposes
(including, where necessary, sensitive data relating to the Executive’s
health and data held for ethnic monitoring purposes) and may, when
necessary for those purposes, make such data available to its advisers, to
parties providing products and/or services to the Company (including,
without limitation, IT systems suppliers, pension, benefits and payroll
administrators) to regulatory authorities (including the Inland Revenue),
to any potential purchasers of the Company or its business (on a
confidential basis) and as required by law. Further, the |
15
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Executive hereby agrees that the Company may transfer such data to and
from Group Companies or subsidiaries, including any Group Companies or
subsidiaries located outside the European Economic Area. |
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|
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| 21. |
|
GENERAL |
| |
|
|
| 21.1 |
|
No failure or delay by either party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof nor shall
any single or partial exercise by either party of any right, power or
privilege hereunder preclude any further exercise thereof or the exercise
of any other right, power or privilege. |
| |
|
|
| 21.2 |
|
The Executive shall have no claim against the Company in respect of the
termination of his employment hereunder in relation to any provision in
any articles of association, agreement, scheme, plan or arrangement which
has the effect of requiring the Executive to sell, transfer or give up any
shares, securities, options or rights at any price or which causes any
options or other rights granted to him to become prematurely exercisable
or to lapse by reason of his termination or because he has given or
received notice of termination. |
| |
|
|
| 21.3 |
|
The Executive hereby irrevocably and by way of security appoints the
Company now or in the future existing to be his attorney and in his name
and on his behalf and as his act and deed to sign, execute and do all
acts, things and documents which he is obliged to execute and do under the
provisions of this Agreement (and in particular, but without limitation,
clause 19) and the Executive hereby agrees forthwith on the request of the
Company to ratify and confirm all such acts, things and documents signed,
executed or done in pursuance of this power. |
| |
|
|
| 21.4 |
|
There are no collective agreements which affect the terms and conditions
of the employment of the Executive hereunder. |
| |
|
|
| 21.5 |
|
Nothing in this Agreement is intended to confer any rights on any person
not a party to this Agreement under the Contracts (Rights of Third
Parties) Xxx 0000 and no consent of any such person shall be needed of the
termination or amendment of this Agreement or any terms hereunder. |
| |
|
|
| 22. |
|
NOTICES |
| |
|
|
| 22.1 |
|
Any notice or communication given or required under this Agreement may be
served by personal delivery or by leaving the same at or by sending the
same through the post addressed in the case of the Company to its
registered office from time to time and in the case of the Executive to
his aforesaid address or to the address provided from time to time by the
Executive to the Company for the purposes of its employment records or by
facsimile transmission. |
| |
|
|
| 22.2 |
|
Any notice sent by post shall be deemed to have been served 24 hours
after the time of posting by first class mail and service thereof shall be
sufficiently proved by proving that the notice was duly dispatched through
the post in a pre-paid envelope addressed as aforesaid. In the case of
facsimile transmission it shall be deemed to have been received when in
the ordinary course of such transmission it would be received by the
addressee or if transmitted after 5 p.m. or on a day that is not an
ordinary business day on the next business day. |
16
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| 23. |
|
EXTENT AND SUBSISTENCE OF AGREEMENT |
| |
|
|
| |
|
This Agreement supersedes all other agreements other than those expressly
referred to in this Agreement whether written or oral between the Company
and the Executive relating to the employment of the Executive. The
Executive acknowledges and warrants to the Company that he is not
entering into this Agreement in reliance upon any representation not
expressly set out herein. |
| |
|
|
| 24. |
|
GOVERNING LAW AND JURISDICTION |
| |
|
This Agreement shall be governed by and construed in accordance with
English law and the parties agree to submit to the exclusive jurisdiction
of the English Courts as regards any claim, dispute or matter arising out
of or relating to this Agreement. |
IN WITNESS whereof a duly authorized representative of the Company has executed
this Agreement and the Executive has executed this Agreement as his Deed on the
date of this Agreement.
| |
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| /s/ |
|
21 November 2003 |
|
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Capers X. XxXxxxxx
|
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Date |
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President and Chief Executive Officer |
|
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BioReliance Corporation |
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| |
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/s/
|
|
25 November 2003 |
|
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SIGNED and DELIVERED by the said
|
|
Date |
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Xxxxxxx X. Xxxxxxxx as his DEED in |
|
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the presence of: |
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| Witness’ Signature |
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| Witness’ Name |
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| Address |
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| Occupation |
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Copy: Xxxxxxx Xxxxxx, Chairman, Compensation Committee of the Board of Directors
17
