Exhibit 10.2.3
Dated: 29 August 2006
(1) BIOVEX LIMITED
AND
(2) DR. XXXXXX XXXXXX
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SERVICE AGREEMENT
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(WILMERHALE LOGO)
Alder Castle
00 Xxxxx Xxxxxx
Xxxxxx, XX0X 0XX
Tel: x00 (0)00 0000 0000
Fax: x00 (0)00 0000 0000
Ref: DAA/0287572/00131
THIS AGREEMENT is dated the 29th day August 2006
BETWEEN:
(1) BIOVEX LIMITED a company registered in England and Wales under registered
number 03480520 with its registered office is at 00 Xxxxxx Xxxx, Xxxxxxxx,
Xxxxxx, XX00 0XX (the "COMPANY"); and
(2) DR. XXXXXX XXXXXX of Xxxx 0, 00 Xxxxxxxx Xxxxxxx, Xxxxxx X00 0XX
("YOU/YOU").
1. TITLE
You will be employed by the Company as its Chief Scientific Officer and you
will report to the Chief Executive Officer (or such other person as the
Board may direct).
2. JOB DUTIES
You agree that you will:
2.1 devote the whole of your working time, attention and abilities to your
duties for the Company, the Parent or their Group Companies under this
agreement, unless you are absent from work due to ill health, incapacity,
injury, authorised annual leave or at the Company's request;
2.2 faithfully and diligently perform your duties to the best of your ability,
act in the best interests of the Company and its Group Companies at all
times and use your best endeavours to promote and develop the best
interests of the Company and any Group Companies;
2.3 without payment of additional salary or remuneration, accept any offices or
directorships in the Company or any Group Company and perform such other
duties and exercise such other powers in relation to the business of the
Company or any Group Company as may from time to time be reasonably vested
in or assigned to you by the Board;
2.4 obey the reasonable and lawful directions of the Board at all times and
comply with any lawful rules, regulations and policies issued by the
Company from time to time;
2.5 keep the Board (or the board of directors of any other Group Company for
whom you are carrying out any duties) fully informed in a timely manner of
any duties or activities you are undertaking on behalf of the Company or
any Group Company in such form as the Board may reasonably require;
2.6 not obtain or accept, directly or indirectly, any discount, rebate, gift,
commission, fees or other benefit from any third party in respect of any
sale or purchase of goods or services by the Company or any Group Company;
and
2.7 carry out your duties and exercise your powers jointly with any other
person appointed by the Board in its discretion to act jointly with you.
3. OUTSIDE INTERESTS
3.1 You agree that, during your employment with the Company, you will not,
without the prior written consent of the Board, be employed or engaged by,
appointed as a director or officer of or be otherwise interested or
concerned (including, but not limited to interests as shareholder, partner,
investor or lender) in any other business, firm, company, corporation or
organisation. The Company acknowledges that you currently undertake an
academic role with University College London and the Company agrees that
nothing in this Agreement (including this clause 3.1) will prevent you from
continuing to undertake this role, provided that it does not interfere with
your duties under this Agreement or create a conflict of interest with that
of the Company or any Group Company. Without prejudice to your other
duties, in the event of a conflict of interest (including a potential
conflict or something which might reasonably appear to be a conflict) you
agree to immediately report such matter to the Chief Executive Officer.
3.2 Notwithstanding any term of this agreement, you may hold (directly or
through nominees including your spouse, partner or minor children) by way
of bona fide personal investment any units of any authorised unit trust and
up to 3% of the issued shares, debentures or other securities of any
company whose shares are listed on a recognised investment exchange, on the
AIM market of the London Stock Exchange plc, NASDAQ, the New York Stock
Exchange or comparable markets.
3.3 During your employment you shall comply with all applicable rules of law
and any policy, code, rules or regulations of the Company or any Group
Company relating to dealings in shares, debentures or other securities of
the Company and any Group Company or relating to any unpublished price
sensitive information affecting the securities of the Company, any Group
Company or any other company or corporation.
4. FREEDOM TO TAKE UP EMPLOYMENT WITH THE COMPANY
You undertake that by entering into this agreement or performing any of
your duties for the Company you will not be in breach of any other
agreement, contract or obligation binding on you.
5. PERIOD OF CONTINUOUS EMPLOYMENT
You agree that your employment with the Company and your period of
continuous employment for the purposes of the Employment Rights Xxx 0000
commenced on 12 February 1999. No period of employment with a previous
employer will count as part of your period of continuous employment with
the Company.
6. TERM
6.1 Subject to clause 22 below and the remainder of this clause 6, this
agreement (and hence your employment) may be terminated by either party to
this agreement giving to the other party not less than 12 months' notice of
termination of employment in writing.
6.2 Without prejudice to the Company's rights under clause 22 below, the
Company may in its absolute discretion choose to terminate your employment
immediately at any
time (whether or not notice of termination has been served by either party
to this agreement) by making you a payment in lieu of notice within 14
calendar days of the Termination Date equivalent to the basic salary that
would have been paid to you by the Company during the unexpired period of
notice due to you under clause 6.1 of this agreement. The payment in lieu
of notice will not take into account any commission, bonus, holiday
entitlement, incentives, car allowance, pension contributions, employee
benefits that would have been paid or provided to you or otherwise
applicable during the unexpired period of notice. The payment in lieu of
notice will be subject to deductions for income tax, employee's national
insurance contributions and other deductions required by law.
6.3 The normal retirement age for your position is 65.
7. PLACE OF WORK
7.1 Your normal place of work will be the Company's main offices. The Company
reserves the right to change your normal place of work, temporarily or
permanently, to anywhere within or outside the United Kingdom (including,
in particular, to the Parent Company's premises at 00 Xxxxxxxx Xxx, Xxxxxx,
XX00000, XXX) provided that the Company will give you at least three
months' prior notice of any permanent change of location.
7.2 In the event that your normal place of work is moved to the United States,
the Company will pay all reasonable relocation expenses in line with
previous company practice.
7.3 You shall be required from time to time to travel to and work from such
places within or outside the United Kingdom for such periods as the Company
may reasonably require for the proper and efficient performance of your
duties.
8. SALARY
8.1 You will be paid a basic salary at the rate of L118,450 per annum, which
shall be subject to deductions for income tax, employee's national
insurance contributions and any other deductions required by law. Your
salary will accrue on a day-to-day basis and will be payable monthly in
arrears on or about the last working day of each month. Your salary is paid
in respect of your duties both for the Company and any Group Company for
whom you are required to work and includes any directors' fees due to you.
8.2 Your salary will be reviewed by the Company once each year, provided that
there shall be no obligation on the Company to increase your salary as a
result of any such review.
9. EXPENSES
You will be reimbursed all out-of-pocket expenses reasonably and properly
incurred by you solely on the business of the Company or any Group Company
provided you:
9.1 comply with any expenses policy of the Company in force from time to time;
9.2 produce to the Company such receipts or other evidence of actual payment of
the expenses concerned as the Company reasonably requires; and
9.3 submit all expense claims for any such expenses within three months of
incurring the expenditure.
10. PENSIONS, BONUSES AND OTHER BENEFITS
10.1 PENSION: You shall be entitled to join the Company's money purchase pension
scheme (the "Plan"), subject at all times to the rules of the Plan in force
from time to time (which may be varied from time to time at the discretion
of the Company). The Company will contribute, by means of monthly
instalments to the Plan, an annual sum equivalent to 10% of your basic
annual salary in the applicable calendar year, subject at all times to:
(a) any contribution limitations prescribed by HM Revenue and Customs from
time to time; and
(b) the rules of the applicable plan,
both of which may vary from time to time.
10.2 BONUS SCHEME: Subject to the terms, conditions and rules of any applicable
bonus plan in force from time to time and the successful achievement by you
and by the Company of any targets, budgets or objectives determined by the
Compensation Committee of the Parent for each year, you shall be eligible
for a discretionary bonus of up to 30% of your basic annual salary at the
applicable time. Whether each target or objective has been successfully
completed, whether to pay any bonus and, if so, the amount of any bonus are
matters within the discretion of the Compensation Committee of the Parent.
You agree that the terms, conditions and rules applicable to the bonus plan
may be varied from time to time in the absolute discretion of the Company
and you acknowledge that the targets and objectives are likely to vary from
year to year. The fact that a bonus is paid in one year is no guarantee
that bonuses will be paid in subsequent years. As the bonus is intended to
incentivise you to remain in the employment of the Company, the payment of
any bonus is conditional on your being in the employment of the Company on
the day the bonus is due for payment. All bonuses shall be subject to
deductions for income tax, employee's national insurance contributions and
any other withholdings required by applicable law.
10.3 EMPLOYEE BENEFITS: Subject to you and, where applicable, your spouse/civil
partner or minor children meeting any conditions of eligibility on a
ongoing basis (including those imposed by the relevant insurer and/or
underwriter), the rules, terms and conditions of the applicable scheme at
the relevant time (which may be varied from time to time at the absolute
discretion of the Company) and to the Company being able to secure cover
for you and, where applicable, your spouse/civil partner or minor children
at rates which are reasonably acceptable to the Company, the Company will
provide you, your spouse/civil partner and minor children with cover under
its private medical expenses insurance scheme and will provide you (only)
with cover under the Company's permanent health insurance scheme and life
assurance scheme. The terms and conditions relating to the benefits
provided under each scheme are as set out in the relevant insurance scheme
that the Company has in force at the applicable time
(which will change from time to time during the term of this agreement).
Any descriptions of the benefits stated in the staff handbook or elsewhere
are provided for guidance purposes only and do not constitute binding terms
and conditions of employment. You acknowledge that each insurance scheme
includes detailed terms and conditions relating to your entitlement to
benefits under any given circumstances, the level of cover and the
cessation of the benefits. You are advised to obtain and review a copy of
the terms and conditions of each insurance scheme, which are available from
the Company's Human Resources Department.
The Company reserves the right to withdraw any or all of these schemes at
any time and/or to vary the schemes, the insurers, the rules, terms and
conditions applicable to the scheme (including the eligibility conditions)
or the level of cover at any time in its absolute discretion. You
acknowledge and agree that you shall not be entitled to any benefits under
any of the insurance schemes that may be provided for your benefit unless
the claim is admitted and paid by the relevant insurance provider and that
the Company shall have no obligation to take any legal action against any
insurance provider in order to secure admission of any claim or payment of
any benefits. Nothing in this agreement or in the rules, terms and
conditions of any insurance scheme shall give rise to any express or
implied limitations on the right of the Company to terminate your
employment at any time in accordance with clause 6 or clause 22 of this
agreement, provided that any insurance provider paying benefits to the
Company under the Company's permanent health insurance scheme due to your
incapacity agrees to pay the same level of benefits directly to you on the
basis of and subject to the same substantive terms or conditions of cover
(including the relevant definition of incapacity). You acknowledge and
agree that you will not, following the termination of your employment by
the Company in compliance with the terms of this clause, have any right of
action or claims whatsoever against the Company arising from or in
connection with the permanent health insurance scheme or the payment (or
cessation of payment) of any benefits to you under the permanent health
insurance scheme. You shall not have any express or implied right to
receive any benefits or to the continuation of benefits following the
termination of your employment.
11. HOURS OF WORK
11.1 You agree to work such hours as may be necessary for the proper and
efficient performance of your duties under this agreement and in any event
not less that the normal working hours of the Company, as established from
time to time.
11.2 You agree that the limit on average weekly working time set out in
Regulation 4(1) of the Working Time Regulations 1998 will not apply to you.
You acknowledge that you understand that your continued employment is not
in any way conditional on you agreeing to this opt out of the 48 hour limit
on your average working time during each week and you may therefore delete
this clause 11.2 if you do not agree to opt out. After signing this
agreement, you may opt back into the 48 hour average working week by giving
the Company three months prior written notice.
12. HOLIDAYS
12.1 The Company's holiday year runs from 1 April to 31 March.
12.2 You will be entitled to 25 working days as paid annual leave in each
holiday year, in addition to recognised English bank holidays. For the
holiday year during which your employment commences or terminates, your
holiday entitlement will be calculated on a pro rata basis.
12.3 All holiday must be authorised in advance by the Chief Executive Officer
and must be taken at times that are convenient to the Company having due
regard to the needs of the business of the Company or any relevant Group
Company. For the avoidance of doubt Regulations 15(1) to 15(4) of the
Working Time Regulations 1998 (dealing with dates when leave is taken) will
not apply to your employment.
12.4 You may not, without the prior permission of the Chief Executive Officer,
carry forward any unused part of your holiday entitlement to a subsequent
holiday year. Subject to payments made under clause 12.6 below, the Company
will not make any payment in lieu of holiday which has accrued, but has not
been taken, by the end of any holiday year.
12.5 Following either party to this agreement giving notice to terminate this
agreement, the Company may at its discretion require you to take, during
the notice period, some or all of any holiday entitlement which will have
accrued to you by the date of termination of your employment, but which you
have not yet taken.
12.6 On the termination of your employment with the Company, the Company will:
(a) pay you in lieu of your accrued holiday, save that if you are
dismissed for gross misconduct, the Company shall be under no
obligation to pay you holiday pay in respect of accrued but untaken
holiday in excess of any minimum holiday entitlement required by law
for the year in question. Any payment in lieu of holiday entitlement
will be subject to deductions for income tax, employee's national
insurance contributions and other deductions required by law; or
(b) deduct an amount representing salary paid during holiday taken but not
accrued by the date of termination of your employment from any
payments due to you from the Company (including your final salary
payment or any payment in lieu of notice) or, in the event that this
is insufficient, require you to repay such amount to the Company as a
debt within 7 days of the termination of your employment.
Any payment in lieu, deductions or repayments in respect of holiday
entitlement shall be calculated on the basis of one day's holiday giving
rise to a payment in lieu equivalent to 1/260 of your basic annual salary.
13. DEDUCTIONS FROM WAGES
Without prejudice to any other rights open to the Company, you consent to
the Company deducting from any wages due to you, (including Company sick
pay) sums representing the amount of any outstanding loans or advances made
to you by the Company, any overpayment of salary or expenses and payment
made to you by mistake or through misrepresentation.
14. DATA PROTECTION
In order to keep and maintain any records relating to your employment under
this agreement and in order to record and monitor attendance, it will be
necessary for the Company to record, keep and process personal data
relating to you on computer and in hard copy form. Examples of personal
data include: details of your disciplinary record; any grievances raised by
you; the contents of your personnel file; and any sensitive personal data
held by the Company such as your religious beliefs, your ethnic or racial
origin and information relating to your physical and mental health.
Further, in order to pay your salary and offer you the other benefits to
which you may be entitled, the Company may also need to obtain from you
details of your bank account and other financial information. To the extent
that it is reasonably necessary in connection with your employment and the
Company's responsibilities as an employer, you agree that this data may be
disclosed to others, including other employees of the Company or any Group
Company, the Company's professional advisers, the Inland Revenue or other
taxation authority, the police and other regulatory authorities. You hereby
consent to the recording, processing, use and disclosure by the Company of
personal data relating to you as set out above (including the recording,
processing, use and disclosure of your sensitive personal data to the
extent required by reason of your employment or by law), including the
transmission of such data abroad whether the recipient is located within or
outside the European Economic Area.
15. SICKNESS OR INJURY
15.1 If you are absent from work due to sickness, injury or accident you will
notify a suitable member of staff of the Company as soon as possible.
15.2 If you are absent from work for less than 7 calendar days you will complete
a self-certification form setting out the nature of your illness or
incapacity on your return to work. If your absence continues for 7 calendar
days or more you agree that you will on the eighth calendar day of such
absence submit a doctor's certificate to the Company and that you will
submit further doctor's certificate promptly to cover any continued period
of absence.
15.3 Provided you comply with the notification and certification procedure set
out above, the Company will pay your normal basic salary for 90 working
days of absence due to illness, accident or injury in any period of 12
months, whether or not such days of absence are consecutive. In the event
that you exhaust your Company sick pay entitlement in any period of 12
months:
(a) you shall not be entitled to any further Company sick pay until and
unless you have returned to work for a consecutive period of not less
than 3 calendar months;
(b) any further payments of enhanced Company sick pay will be made at the
sole discretion of the Company;
(c) the Company will pay any statutory sick pay that may be due in
accordance with the prevailing statutory sick pay regulations; and
(d) the Company will pay any benefits due to you in accordance with the
rules, terms and conditions stated in the Company's permanent health
scheme, in accordance with and subject to the terms and conditions
stated in clause 10.3 of this agreement.
15.4 You agree that, with effect from the date any benefits become payable to
you under the Company's permanent health scheme, you:
(a) shall cease to be entitled to any salary, Company sick pay, other
remuneration (save for the PHI benefits), car allowance, other
allowances, bonuses, commission, pension contributions, life
assurance, private medical insurance cover, stock options grants,
incentives, or other employee benefits;
(b) shall cease to have any obligation to hold you out as its Chief
Scientific Officer and the Company shall be entitled to appoint a new
Chief Scientific Officer; and
(c) will, if requested to do so by the Board at any time, immediately
resign from all directorships and other offices held by you in the
Company or any Group Companies.
15.5 Failure to comply with the certification requirements set out above may
result in your forfeiting your entitlement to be paid during periods of
absence and in your facing disciplinary action.
15.6 Company sick pay paid to you at the discretion of the Company at any time
shall include any statutory sick pay payable to you under the then
prevailing rules of the statutory sick pay scheme. The Company may deduct
from Company sick pay an amount or amounts equal to any state sickness
benefit to which you are entitled.
15.7 The Company reserves the right to require you to undergo a medical
examination by the Company's doctor or an independent medical practitioner
in the event that you are unable to carry out your normal duties for the
Company or are absent from work due to illness, accident or injury for not
less than one month and you agree that the doctor or independent medical
practitioner may disclose to the Company the results of the examination and
discuss with the Company and its professional advisers any matters arising
from the examination as might impair you from properly discharging your
duties. You also authorise your own doctor to provide the Company's doctor
and/or independent medical practitioner with any relevant extracts from
your medical notes. This clause is without prejudice to your statutory
rights, including your rights under the Access to Medical Reports Xxx 0000.
16. CONFIDENTIALITY
16.1 During the course of your employment you will have access to and become
aware of information which is confidential to the Company. You undertake
that you will not, save in the proper performance of your duties, use
(whether for your own benefit or for the benefit of any other person, firm,
company or organisation) or disclose to any person, firm, company or
organisation any of the trade secrets or other confidential information of
or relating to (a) the Company; (b) any Group Company; (c) any customer or
Prospective Customer (as defined below) of the Company or any Group
Company; (d) any person, firm, company or organisation with whom or which
the Company is involved in any kind of business dealings, venture or
partnership; or (e) the business of the Company or any Group Company, which
(in the case of each of (a) through to (e)) you received or obtained in the
course of your duties for the Company or as a result of your employment by
the Company. You will likewise use your best endeavours to prevent the
unauthorised publication or disclosure by any third party of any such trade
secrets or confidential information.
16.2 The restriction stated in clause 16.1 above shall continue to apply after
the termination of your employment, but shall cease to apply to information
which must be disclosed by law or by an order of any court or tribunal of
competent jurisdiction and to information which becomes available to the
public generally (other than by reason of your breaching this clause).
Nothing in this clause will prevent you making a "protected disclosure"
within the meaning of Section 43A Employment Rights Xxx 0000, provided that
you have first followed and exhausted any reasonable Company procedure in
relation to the reporting of any alleged wrongdoing or malfeasance on the
part of the Company or any Group Company or any of its/their officers,
directors, employees or advisers.
16.3 For the purposes of this agreement confidential information shall include,
but shall not be limited to:
(a) corporate, marketing, product development and business development
strategies and plans;
(b) budgets, management accounts, bank account details and other
confidential financial data;
(c) business, sales and marketing methods;
(d) details, designs, know-how, technical data, techniques, processes and
specifications of or relating to any products and services being sold,
provided, manufactured, distributed, researched or developed,
including all: research and development reports and data; genetic
data; databases; chemical formulae; information relating to
pre-clinical or clinical trials; medical records; proprietary
vaccines; vaccines; pharmaccines; anti-viral therapies; disease
inhibitors; proprietary bioinformatics; proprietary elements or
compounds (whether organic or inorganic); methods of manufacture;
nucleotide or nucleotide sequence including DNA and RNA sequences;
gene; vector or construct including plasmids, phages or viruses; host
organism including bacteria, fungi, algae and protozoa; hybridomas;
eukaryotic or prokaryotic cell line or expression system or any
development strain or product of that cell line or expression system;
protein including any peptide or amino acid sequence, enzyme, antibody
or protein conferring targeting properties and any fragment of a
protein or a peptide enzyme or antibody; drug or pro-drug; assay or
reagent; any other genetic or biologic material or micro-organism;
multi-cellular plants; data for the derivation of molecular structures
including NMR spectra, X Ray diffraction patterns, and other primary
experimental information, assignments and other calculations, required
for determination of the structure, and co-ordinates of the derived
molecular structure; and any intellectual property rights;
(e) computer technology; computer programs; software applications and
systems; information relating to proprietary hardware or software
(including updates); source and object code to proprietary software;
confidential algorithms developed or used for such proprietary
software;
(f) details of the salaries, remuneration, fees, bonuses, commissions and
other employment terms applicable to employees, officers and
consultants;
(g) the names, addresses and contact details of any customers, Prospective
Customers, suppliers, advisers, distributors, agents and other
business partners, customer lists in whatever medium this information
is stored and the requirements of those customers or the potential
requirements of Prospective Customers for any products or services;
(h) the terms and conditions of business with customers, suppliers,
advisers, distributors, agents and other business partners, including
any pricing policy, discount policy or credit policy adopted and the
terms of any partnership, joint venture or other form of commercial
co-operation or agreement with any third party;
(i) software and technical information necessary for the development,
maintenance or operation of any websites and the source and object
code of each website;
(j) existing, pending or threatened litigation; and
(k) any other information which is the subject of an obligation of
confidence owed to a third party, in particular the content of
discussions or communications with any Prospective Customers or
prospective business partners.
17. DELIVERY UP OF THE COMPANY'S PROPERTY
17.1 You may not, save in the proper performance of your duties or with the
prior permission of the Company, remove any property belonging to the
Company or any Group Company, or relating to the affairs of the Company or
any Group Company, from the Company's or any Group Company's premises, or
make any copies of documents or records relating to the Company's or any
Group Company's affairs.
17.2 Upon the Company's request at any time, and in any event on the termination
of your employment, you will promptly deliver up to the Company or its
authorised representative, any plans, keys, mobile telephone, security
passes, credit cards, customer lists, price lists, equipment, documents,
records, papers, computer disks tapes or other computer hardware or
software or memory medium or devices (together with all copies of the
same), and all property of whatever nature in your possession or under your
control which belongs to the Company or any Group Company or relates to its
or their business affairs. You will, at the Company's request, provide the
Company without delay with a written statement confirming that you have
complied with this obligation.
17.3 If, on the termination of your employment, you have any information
relating to the Company or any Group Company or work you have carried out
for the Company or
any Group Company which is stored on a device (which for the purpose of
this agreement includes any personal computer, laptop computer, web-server,
personal digital assistant, mobile telephone, memory, disk or any other
storage medium) which device does not belong to the Company, you agree to
disclose this fact to the Company immediately upon the termination of your
employment and you agree to provide the Company with immediate access to
the relevant device so that the Company may download the information and/or
supervise its deletion from the device concerned. You will, at the
Company's request, furnish the Company with a written statement confirming
that you have complied with your duty of disclosure to the Company under
this clause.
18. COPYRIGHT AND DESIGN RIGHTS
18.1 You acknowledge and agree that the provisions of this clause 18 apply in
respect of any works in which copyrights, design rights, or database rights
(or similar forms of intellectual property protection) may exist which you
have made or originated either by yourself or jointly with other people
during your employment with the Company, but prior to the date of this
agreement, as well as any such works which you may so make or originate
after the date of this agreement.
18.2 You will promptly disclose to the Board all works in which copyrights,
design rights or database rights (or similar forms of intellectual property
protection) may exist which you have made or originated or which you make
or originate either by yourself or jointly with other people during your
employment whether before or after the date of this agreement.
18.3 Any copyright work, design or database which has been or may be created by
you in the normal course of your employment, in the course of carrying out
duties specifically assigned to you or which is capable of being used or
exploited by the Company or any Group Company in its business operations,
shall be the property of the Company whether or not the work was made at
the direction of the Company or was intended for the Company and the
copyright in it and the rights in any design or database shall belong
absolutely to the Company throughout all jurisdictions and in all parts of
the world, together with all rights of registration, extensions and renewal
(where relevant).
18.4 To the extent that such copyrights, design rights and database rights (and
similar forms of intellectual property protection) are not otherwise vested
in the Company, you hereby assign the same to the Company, together with
all past and future rights of action relating thereto. In relation to any
copyright work, design or database that may created by you in the future,
whether in the normal course of your employment, in the course of carrying
out duties specifically assigned to you or which is capable of being used
or exploited by the Company or any Group Company in its business
operations, you hereby assign, by way of present assignment of future
rights to the extent permissible by law, the copyrights, design rights and
database rights (and similar forms of intellectual property protection) in
the same to the Company, with the intention that such copyrights, design
rights and database rights (and similar forms of intellectual property
protection) should forthwith upon completion of the relevant works vest in
the Company.
18.5 You recognise and accept that the Company may edit, copy, add to, take
from, adapt, alter and translate the product of your services in exercising
the rights assigned under clause 18.3.
18.6 To the fullest extent permitted by law, you irrevocably and unconditionally
waive any provision of law known as "moral rights" including any moral
rights you may otherwise have under sections 77 to 85 inclusive of the
Copyright Designs and Patents Xxx 0000 in relation to the rights referred
to at clause 18.3. You give this waiver in favour of the Company and each
Group Company, and all successors in title to and licensees of the
copyright, design right and database right in such works (whether existing
or future).
18.7 You agree that you will at the Company's request and expense, execute such
further documents or deeds and do all things necessary or reasonably
required to confirm and substantiate the rights of the Company under this
clause 18 both before and after the termination of this agreement for any
reason.
18.8 You agree that you will not at any time make use of, disclose or exploit
the Company's property, trade marks, service marks, documents, materials or
information in which the Company or any Group Company owns (wholly or
partially) the copyright, design right or database right (or similar forms
of intellectual property protection) for any purpose which has not been
authorised by the Company.
19. INVENTIONS
19.1 You acknowledge and agree that the provisions of this clause 19 apply in
respect of any invention, discovery, design, improvement or other matter or
work whatsoever made or discovered or to be made or discovered by you
(whether alone or jointly with others) from time to time during the course
of your employment with the Company whether before or after the date of
this agreement.
19.2 It has been and it shall be part of your normal duties at all times to
consider in what manner and by what new methods or devices, products,
services, processes, equipment or systems of the Company and each Group
Company might be improved and to further the intellectual property
interests of the Company. You and the Company agree that, because of the
nature of your duties and the particular responsibilities arising from your
duties, you have had and continue to have a special obligation to further
the interests of the Company.
19.3 You hereby acknowledge and agree that the sole ownership of any invention,
discovery, design, improvement or other matter or work whatsoever made or
discovered or to be made or discovered by you (whether alone or jointly
with others) from time to time in the course of undertaking your normal
duties for the Company or any Group Company under this agreement or in the
course of carrying out duties assigned to you by the Company or any Group
Company under this agreement, whether in each case before or after the date
of this agreement, and all patents, trade secret rights and other
intellectual property and proprietary rights therein ("Company Inventions")
shall (subject to any contrary provisions of the Patents Xxx 0000, the
Copyright Designs and Patents Xxx 0000 or any other applicable laws and to
any rights of a joint inventor thereof) belong free of charge and
exclusively to the Company or as it may direct.
19.4 You shall promptly give to the Board full details of all inventions,
discoveries, designs, improvements or other matter or works whatsoever made
or discovered by you from time to time during your employment with the
Company, whether before or after the date of this agreement.
19.5 All worldwide copyright, design rights and database rights in all Company
Inventions shall be and remain the property of the Company and the
provisions of clause 18 above shall apply in relation to the same.
19.6 You agree that you shall, at any time during your employment or thereafter,
at the Company's expense, do all such acts and things and execute such
documents (including without limitation making application for letters
patent) as the Company may reasonably request in order to vest effectually
all Company Inventions, to the extent that the same is the property of the
Company or any other Group Company, and any protection as to ownership or
use (in any part of the world) of the same, in the Company or any Group
Company, or as the Company may direct, and you hereby irrevocably appoint
the Company for these purposes to be your attorney in your name and on your
behalf to execute and do such acts and things and execute any such
documents as set out above.
19.7 You agree that you will not knowingly do or omit to do anything which will
or may have the result of imperilling any such protection aforesaid or any
application for such protection.
19.8 You agree that you will not at any time make use of, disclose or exploit
any Company Invention belonging wholly or partially to the Company or any
Group Company for any purpose which has not been authorised by the Company.
19.9 Each of the provisions in this clause 19 is distinct and severable from the
others and if at any time one or more of such provisions is or becomes
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions of the clause will not in any
way be affected or impaired.
20. GARDEN LEAVE
The Company shall be under no obligation to provide you with work during
any period of notice of termination of employment (or any part thereof),
whether such notice is given by the Company or by you (the "NOTICE
PERIOD"). During the Notice Period, the Company may require you: (a) to
carry out special projects or alternative duties provided that they are
reasonably consistent with your status within the Company and your
qualifications and skills; and/or (b) to cease carrying out some or all of
your duties and powers for the Company or any Group Company; and/or (c) not
to have any business dealings with the employees, suppliers, advertisers,
customers and agents of the Company or any Group Company; and/or (d) not to
attend at any premises or offices of the Company or any Group Company. You
agree that you will, if requested to do so by the Board at any time during
the Notice Period, immediately resign from all directorships and other
offices held by you in the Company or any Group Companies. You will, during
the Notice Period, continue to receive your salary and all contractual
benefits provided by your employment. During the Notice Period you may not
be engaged or employed by, take up any office or partnership in or be
otherwise interested or concerned in any other company, firm, business or
organisation without the prior
written permission of the Company. You will continue to owe the Company
duties of good faith, fidelity and loyalty during the Notice Period and the
provisions of this agreement will continue in force during the Notice
Period unless otherwise stated in this clause 20.
21. SUSPENSION
In addition to the right to put you on garden leave set out in clause 20,
the Company may suspend you on full pay pending the outcome of a
disciplinary investigation or for health reasons. Whilst on suspension the
Company may impose the same conditions as are applicable during garden
leave.
22. TERMINATION OF EMPLOYMENT
22.1 The Company may terminate your employment with immediate effect by serving
written notice of immediate termination on you in the event that you:
(a) are, in the reasonable view of the Board, guilty of gross misconduct,
wilful and serious neglect of duty, material dishonesty, gross
incompetence or gross negligence;
(b) infringe (in a manner which the Board reasonably considers to be
material or prejudicial to the interests of the Company or any Group
Company) any rules or regulations imposed by any regulatory or other
external authority or professional body applicable to your employment
or which regulate the performance of your duties, the Company's
business or the listing of the shares or securities of the Company or
any Group Company on a recognised investment exchange or you fail to
continue to possess any qualification or meet any condition or
requirement laid down by any such applicable regulatory authority or
professional body or by any legislation or regulations;
(c) act in a way which in the reasonable view of the Board brings you, the
Company or any Group Company into material disrepute, whether or not
such act is directly related to the affairs of the Company or any
Group Company;
(d) breach clause 3.3 of this agreement, violate any rules of the Company
relating to your dealings with the shares of the Company or any Group
Company and/or enter into any transaction which contravenes the
insider dealing provisions contained in the Criminal Justice Xxx 0000
or any other statutory provision;
(e) become bankrupt, have an interim order made against you under the
Insolvency Xxx 0000 or make any composition or enter into any deed of
arrangement with your creditors or the equivalent of any of these
under any other jurisdiction;
(f) are convicted of a criminal offence (other than a motoring offence for
which you are not sentenced to any term of imprisonment, whether
immediate or suspended); or
(g) become disqualified from acting as a director of a company or resign
from any office you hold as a director of the Company or any Group
Company
otherwise than at the written request of the Company or with the prior
written consent of the Company.
22.2 In the event of the termination of your employment pursuant to clause 22.1,
you shall not be entitled to receive notice of termination in accordance
with clause 6.1 of this agreement or any payment in lieu of notice in
accordance with clause 6.2 of this agreement.
22.3 You agree that you will, on the termination of your employment, transfer to
the Company (or as the Company may direct) any shareholdings held by you on
behalf of the Company or any Group Company, subject to and in accordance
with the Company's articles of association from time to time.
23. OBSERVER RIGHTS
23.1 Subject to clause 23.2 below, the Company will procure that you will be
entitled to attend and participate (other than as to voting) in all
meetings of the Board of the Parent Company in full as a nonvoting observer
(including all meetings conducted by telephone and/or teleconference) and
to receive copies of all notices, materials or documents distributed by the
Parent Company to its directors.
23.2 The Parent Company shall reserve the right to exclude you from access to
any materials, documents or meeting or portion thereof if the Parent
Company believes on advice of its legal advisor that such exclusion is
reasonably necessary to preserve attorney-client privilege, provided that
you are informed of the existence of any such materials, documents or
meeting or portion thereof and the general content thereof, together with a
written or oral summary (and, if oral, followed up with a summary in
writing provided by the Company's legal advisor if so requested by you) of
such legal advice (with such redactions as may be necessary to preserve
attorney-client privilege).
24. OFFICES
24.1 If, for any reason, you shall either:
(a) resign, at the Company's request, as a director of the Company or any
Group Company; or
(b) be removed from office as a director of the Company or any Group
Company,
then you agree that, notwithstanding your so ceasing to be a director of
the Company or any applicable Group Company (as the case may be), your
employment shall not terminate, there shall be no constructive dismissal,
you shall continue to act as an executive employed by the Company on and
subject to the terms and conditions otherwise set out in this agreement and
you shall have no claim against the Company or any Group Company in respect
of any loss of office.
24.2 You agree that you will, on the termination of your employment, resign
immediately from all offices you hold in the Company and/or any Group
Company.
24.3 You hereby irrevocably appoint the Company to be your attorney to execute
any documents and do anything in your name to effect your resignation as a
director of the
Company or any Group Company should you fail to resign following a request
from the Company to do so in accordance with clause 24.2. A written
notification signed by a director of the Company that any instrument,
document or act falls within the authority conferred by this clause will be
conclusive evidence that it does so.
25. RESTRICTIONS AFTER TERMINATION OF EMPLOYMENT
25.1 You agree and covenant to the Company that you will not, without the prior
written permission of the Board, during the period of 12 months immediately
following the Termination Date (less any period you are required to cease
undertaking any duties for the Company pursuant to clause 20 of this
agreement), and whether on your own behalf or on behalf of any individual,
company, firm, business or other organisation, directly or indirectly:
(a) in connection with the carrying on of any business which competes in
the Restricted Area with the Business, solicit or entice away from the
Company or any Group Company the business or custom of any customer or
Prospective Customer (as defined below) with which customer or
Prospective Customer you had business dealings on behalf of the
Company or any Group Company during the Relevant Period or about which
customer or Prospective Customer you are privy to confidential
information at the Termination Date;
(b) in connection with the carrying on of any business which competes in
the Restricted Area with the Business, accept any business, orders or
custom from any customer or Prospective Customer of the Company or any
Group Company with which customer or Prospective Customer you had
business dealings on behalf of the Company or any Group Company during
the Relevant Period or about which customer or Prospective Customer
you are privy to confidential information at the Termination Date;
(c) in connection with the carrying on of any business which competes in
the Restricted Area with the Business, endeavour to entice away from
the Company or any Group Company any supplies of goods or services
being provided to the Company or any Group Company by any person,
firm, company or organisation whom or which supplied goods or services
to the Company or any Group Company during the Relevant Period with
whom you had business dealings on behalf of the Company or any Group
Company in the course of the Relevant Period or about whom you are
privy to confidential information at the Termination Date;
(d) in any way seek to affect the terms of business on which the Company
or any Group Company deals with any person, firm, company or
organisation whom or which was a customer, agent, distributor or
contractor of or whom or which supplied goods or services to the
Company or any Group Company during the Relevant Period or act or omit
to act in any manner which will or is likely to result in any such
person, firm, company or organisation terminating or reducing the
amount of business dealings with or the custom, services or supplies
it provides to or for the Company or any Group Company;
(e) solicit or seek to entice away from the Company or any Group Company
any person employed or engaged by the Company or any Group Company as
a
director, officer, president or a vice president or any other person
employed or engaged in a managerial, technical, engineering, sales,
marketing, research and/or development capacity at the Termination
Date with whom you had dealings during the Relevant Period. This
restriction shall apply regardless of whether the solicitation
involves a breach of contract on the part of the consultant, director
or employee concerned; or
(f) employ or engage or offer to employ or engage any person employed or
engaged by the Company or any Group Company as a director, officer,
president or a vice president or any other person employed or engaged
in a managerial, technical, engineering, sales, marketing, research or
product development capacity at the Termination Date with whom you had
dealings during the Relevant Period. This restriction shall apply
regardless of whether the employment involves a breach of contract on
the part of the consultant, director or employee concerned.
25.2 You agree and covenant to the Company that you will not, without the prior
written permission of the Board, for a period of 12 months immediately
following the Termination Date (less any period you are required to cease
undertaking your duties for the Company pursuant to clause 20):
(a) be engaged, appointed or employed within the Restricted Area by;
(b) undertake any duties in relation to the Restricted Area (wherever you
are based) for; or
(c) be otherwise interested, concerned or involved in,
(as the context permits) any person, firm, company, corporation, business
or organisation which competes in the Restricted Area with the Business.
25.3 Each of the sub-clauses contained in clause 25 constitutes an entirely
separate and independent covenant. If any restriction is held to be invalid
or unenforceable by a court of competent jurisdiction, it is intended and
understood by the parties that such invalidity or unenforceability will not
affect the remaining restrictions or the validity of the rest of the
agreement and that if any such restriction would be valid if some part
thereof were deleted, such restrictions shall apply with such modification
as may be necessary to make them effective.
25.4 You agree that if you receive an offer of employment, consultancy,
directorship or other office or partnership during the continuance in force
of any of the above, you will prior to acceptance of an offer, provide the
party making the offer with copies of this clause and details of your
notice period, the restrictions on your use and disclosure of confidential
information and the clauses dealing with copyright and inventions.
25.5 You acknowledge that the Company is entering into this agreement not only
for itself but also as the trustee of each Group Company and with the
intention that the Company and/or any Group Company will be entitled to
seek the protection of and enforce each of its restrictions directly
against you. If requested to do so by the
Company, you will at any time enter into like restrictions as those
contained in this clause 25 (mutatis mutandis) with any other Group
Company.
25.6 Nothing in this clause 25 shall prohibit you from holding the investments
and interests set out in clause 3.2 above.
25.7 Following the date upon which your employment terminates, you will not:
(a) represent yourself as being in any way connected with the business of
the Company or any Group Company (except to the extent agreed by such
Company); or
(b) carry on, cause or permit to be carried on any business under or using
any name, trade xxxx, service xxxx, style, logo, get-up or image which
is or has been used by the Company or any Group Company, or which in
the reasonable opinion of the Company, is calculated to cause
confusion with such a name, trade xxxx, service xxxx, style, logo,
get-up or image or infer a connection with the Company or any Group
Company.
26. DISCIPLINARY AND GRIEVANCE PROCEDURES
26.1 The Company's disciplinary procedure shall apply to you, but may be
modified by the Company to the extent that the Company determines to be
reasonable to take into account your position in the Company. All
disciplinary decisions will be taken by a director of the Company (other
than you) and your right of appeal shall be to one of the non-employee
directors or the Chairman of the Parent.
26.2 The Company's grievance procedure shall not apply to you. If you have any
grievance relating to your employment you should write to the Board setting
out full details of the grievance and providing all relevant information.
You agree to promptly answer (in writing if so required) any questions put
to you by any member of the Board in relation to such grievance. All
grievances shall be determined by a director of the Parent and you shall
have a right of appeal to one of the non-executive directors or the
Chairman of the Parent.
27. SECURITY
27.1 All communications, whether by telephone, email, fax, or any other means,
which are transmitted, undertaken or received using the Company's
information technology ("IT") or communications systems or Company property
will be treated by the Company as work related and the Company's IT systems
and network are provided for your use in undertaking your duties. You agree
that the Company may intercept, record and monitor all such communications
made by you and your use of the Company's IT systems and network without
further notice. Accordingly, you should not regard any such communications
or use as being private and matters which are private should be conducted
by you outside of your working hours, away from the Company's premises and
without use of the Company's communications and IT hardware, software,
systems and networks.
27.2 The interception, recording and monitoring of communications is intended to
protect the Company's business interests, for example, but without
limitation, for the
purposes of quality control, security of communication and IT systems,
protection of the Company's confidential information and legitimate
business interests, record-keeping and evidential requirements, detection
and prevention of criminal activity or misconduct and to assist the Company
to comply with relevant legal requirements.
27.3 You agree that intercepted communications may be used as evidence in
disciplinary or legal proceedings, including in any such action against
you.
28. COLLECTIVE AGREEMENTS
There are no collective agreements which directly affect your terms and
conditions of employment.
29. PARTICULARS OF EMPLOYMENT
This agreement includes the particulars of employment required by the
Employment Rights Xxx 0000.
30. RECONSTRUCTION OR AMALGAMATION
If before the termination of this agreement, your employment is terminated
by reason of the liquidation of the Company for the purposes of any
reconstruction or amalgamation, and you are offered employment with any
concern or undertaking resulting from such reconstruction or amalgamation
on terms and conditions no less favourable than the terms of this
agreement, then, to the extent permitted by law, you will have no claim
against the Company in respect of the determination of your employment.
31. ENTIRE AGREEMENT
31.1 This agreement is in substitution for and supersedes any previous service
agreement, contract of employment or offer letter between the Company or
any Group Company and you (including, without limitation, the service
agreement between the Company and you dated 12 February 1999), all of which
shall be deemed to have been terminated by mutual consent on the date this
agreement comes into force and without giving rise to claims against the
Company. You hereby acknowledge and warrant that this agreement states the
entire agreement between the parties in relation to your terms of
employment, that there are no agreements or arrangements whether written or
oral or implied between the Company or any Group Company and you relating
to your employment by the Company other than those expressly set out in
this agreement and that you are not entering into this agreement in
reliance on any representation not expressly set out in this agreement.
31.2 The termination of this agreement howsoever arising shall not affect any of
the provisions of this agreement which are expressed to operate or have
effect or are capable of operation or effect after such termination.
32. NOTICES
Any notice you are required to give under this agreement must be hand
delivered to the Chief Financial Officer of the Parent at the Parent's
principal executive office from time to time. Any notice the Company is
required to give you will be hand
delivered to you or sent by recorded delivery post to your last notified
home address. These notices will be deemed to have been given on the date
of receipt if hand delivered and, if posted, on the day on which the letter
would be delivered in the ordinary course of recorded delivery post.
33. THIRD PARTIES
This agreement constitutes an agreement solely between the Company and you,
and, save where otherwise provided, for the purposes of the Contracts
(Rights of Third Parties) Xxx 0000, nothing in this contract confers or
purports to confer on a third party any benefit or any right to enforce a
term of this contract.
34. INTERPRETATION
34.1 Any reference in this agreement to:
34.2 any Act or delegated legislation includes any statutory modification or
re-enactment of it or the provision referred to;
34.3 "BUSINESS" means any business, trade or other commercial activities of the
Company or any Group Company operated at the Termination Date: (a) with
which business of the Company or any Group Company you are concerned or
involved to any material extent during the Relevant Period; or (b) in
relation to which business of the Company or any Group Company you are
privy to confidential information at the Termination Date;
34.4 "BOARD" shall mean the Board of Directors of the Parent from time to time
or any person or any committee of the Board duly appointed by it;
34.5 "GROUP COMPANY" means each and every all company and/or corporation in any
jurisdiction: (a) which from time to time is a subsidiary or a holding
company of the Company; (b) which from time to time is a subsidiary of such
holding company (excluding the Company); and (c) over which the Company or
its holding company has control within the meaning of Section 416 of the
Income and Corporation Taxes Act 1988 (and where the terms "SUBSIDIARY" and
"HOLDING COMPANY" have the meanings attributed to them by section 736 of
the Companies Act 1985);
34.6 "INCLUDE" and "INCLUDING" and "IN PARTICULAR" shall be construed as being
by way of illustration only and shall not limit the generality of the
preceding words;
34.7 "PARENT" means BioVex Group, Inc., a Delaware corporation and the sole
shareholder of the Company.
34.8 "PROSPECTIVE CUSTOMER" means any person with whom the Company or any Group
Company is in negotiations in relation to the sale or supply of goods
and/or services by the Company or any Group Company to such person or to
whom the Company or any Group Company has submitted a tender relating to
such a sale or supply arrangement;
34.9 "RELEVANT PERIOD" means the period of 12 months immediately preceding the
Termination Date, save where you are placed on garden leave and undertake
no duties for the Company for part or all of the Notice Period ("GARDEN
LEAVE"), in which case
the Relevant Period shall mean the period of 12 months immediately
preceding the date upon which you commence Garden Leave;
34.10 "RESTRICTED AREA" means the United States of America, the United Kingdom
and such other countries within which, on the date your employment
terminates, the Company or any Group Company operates the Business and in
relation to which country, during the Relevant Period, you:
(a) undertook material duties for the Company or any Group Company in
relation to any part of the Business being operated in that country;
or
(b) had a material degree of management responsibility for a material part
of the Business being operated in that country; or
(c) were privy to confidential information relating to the Business; and
34.11 "TERMINATION DATE" means the date upon which your employment with the
Company terminates howsoever arising.
35. GOVERNING LAW
Your terms of employment with the Company are governed by laws of England
and the parties submit to the exclusive jurisdiction of the English courts.
The Company may however enforce the agreement in any other courts of
competent jurisdiction.
IN WITNESS WHEREOF this agreement has been executed and delivered as a deed on
the date stated on the first page of this agreement.
EXECUTED AND DELIVERED AS A DEED
BY BIOVEX LIMITED
ACTING BY: /s/ Xxxxxx Xxxxxx
----------------------------------------
Director
/s/ X. Xxxxxx-Xxxxxx
----------------------------------------
Director/Secretary
EXECUTED AND DELIVERED AS A DEED
BY DR. XXXXXX XXXXXX: /s/ Xxxxxx Xxxxxx
----------------------------------------
in the presence of:-
Signature of witness /s/ illegible
----------------------------------------
Name of witness Xxx Xxxxxxx
Address of witness 000 Xxxxxx Xxxx
/s/ illegible
----------------------------------------
Occupation of witness scientist
