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EXHIBIT 10.53
Dated: September 29, 2000
XXXXXX XXXXXXXX PUBLIC LIMITED COMPANY
- and -
XXXXX X. XXXXXXX
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CONSULTANCY AGREEMENT
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ASHURST XXXXXX XXXXX
Xxxxxxxxx Xxxxx
0 Xxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Tel: 000 0000 0000
Fax: 000 0000 0000
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THIS AGREEMENT is made on September 29, 2000
BETWEEN:
(1) XXXXXX XXXXXXXX PUBLIC LIMITED COMPANY whose registered office is at
(the "COMPANY"); and
(2) XXXXX X XXXXXXX of 0000 Xxxxx Xxx Xxxx Xxxx, Xxxx Xxxxxx, XX 00000, XXX
(the "CONSULTANT").
THE PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
In this agreement the following expressions shall unless the context
otherwise requires have the following meanings:
"ASSOCIATED COMPANY" means an associate or joint venture which falls to
be treated as such for the purposes of the Financial Reporting Standard
No. 9 of the UK Accounting Standards Board;
"BOARD" means the board of directors from time to time of the Company
including any committee of the board duly appointed by it;
"COMPLETION" means the date that the agreement pursuant to which Xxxxx
Holdings plc will exchange all of the outstanding securities of the
Company for ordinary shares in Xxxxx Holdings plc pursuant to a scheme
of arrangement pursuant to section 201 of the Irish Companies Act is
completed;
"CONSULTANCY FEE" means the amount referred to in and calculated and
payable in accordance with clause 4 hereto;
"GROUP COMPANY" means the Company and any subsidiary and associated
company of the Company;
"RETAINED PERIOD" means the period or periods referred to in schedule 1
hereto;
"SERVICES" means the services to be provided by the Consultant in a
consultancy and advisory capacity for the Group Companies as the Board
may reasonably require from time to time more particularly set out in
clause 3.1;
"SEPARATION AGREEMENT" means the Separation Agreement and Mutual
Release entered into between Consultant and the Company.
"SUBSIDIARY" has the meaning given to it in section 736 of the UK
Companies Xxx 0000; and
"TERMINATION DATE" means the date of termination of this agreement
howsoever occasioned.
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2. TERM OF APPOINTMENT
2.1 The Company shall engage the Consultant to and the Consultant shall
provide the Services as hereinafter provided (the "CONSULTANCY").
2.2 The Consultancy shall be deemed to have commenced on Completion and
shall continue (subject to termination as provided below) unless and
until terminated by either party giving to the other not less than
three months' prior notice such notice to expire on or at any time 18
months from Completion (the "EXPECTED TERMINATION DATE").
3. DUTIES
3.1 During the Consultancy, the Consultant shall use his best endeavours to
promote the interests of the Group Companies and in particular, shall
(unless prevented by illness or accident) provide the following
Services to any Group Company in a proper and efficient manner for the
Retained Period: reasonable assistance to the Company and any Group
Company on its day-to-day business and use his valuable knowledge
regarding the Company's industry and business for the benefit of the
Company and any Group Company.
3.2 If the Consultant is unable to provide the Services due to illness or
injury or otherwise he shall forthwith notify the Company and, if
appropriate, shall provide such evidence of his illness or injury as
the Company may reasonably require.
3.3 When the performance of the Services so requires the Company will make
available to the Consultant at a suitable location free of any charge
office facilities and secretarial assistance of a type appropriate.
3.4 During the Consultancy the Consultant may engage in any other business
of professional activities, either on a full-time or part-time basis,
so long as such activities, either singly or in the aggregate, do not
interfere with the proper performance of his duties and
responsibilities to the Company or any Group Company or violate any
prior agreement between him and the Company or any Group Company or any
other provision of this Agreement.
3.5 The Consultant shall use reasonable endeavours to ensure that the
Company can contact him at all times during normal U.S. business hours.
3.6 The Consultant shall have no authority and shall not hold himself out
as having authority to bind the Company save insofar as he is
specifically authorised to do so by the Company in writing.
3.7 The Consultant shall not have any personal liability for the
consequences of any advice or assistance rendered to the Company if he
shall have acted honestly and reasonably in all the circumstances of
the case and accordingly to that extent he shall be indemnified by the
Company against all costs, charges, losses, expenses and liabilities
incurred by him in the discharge of the Services PROVIDED that this
clause 3.7 shall not absolve the Consultant from any liability arising
out of him acting without the prior written authority of the Company.
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4. FEES
4.1 In consideration of the provision by the Consultant of the Services
during the Consultancy the Company shall pay the Consultancy Fee (as
set out in this clause) to the Consultant.
4.2 The Consultant shall receive a monthly fee in the sum of $15,277.77
monthly in arrears by credit transfer within 14 days of the end of such
month for the duration of the Consultancy. Should the Consultancy
terminate by reason of death, injury, disability or ill-health, the
Consultant or his executors shall retain all payments received
hereunder up to that date (the "DATE OF CESSATION") and a further
payment equal to the further payments which would otherwise be due
calculated from the Date of Cessation to the Expected Termination Date
shall be paid to the Consultant or his executors. Should the
Consultancy terminate in any other circumstances, the Consultant shall
not, subject to the absolute discretion of the Board, receive the said
further payment but shall retain all payments received hereunder up to
the Date of Cessation.
4.3 The Company shall be entitled to deduct from the Consultancy Fee (and
any other sum due to the Consultant) any sums that the Consultant may
owe the Company at any time.
5. EXPENSES
The Company shall reimburse the Consultant (within seven days of
receipt of an appropriate invoice) all reasonable travelling, hotel and
other expenses properly authorised by the Board and wholly, exclusively
and necessarily incurred by the Consultant in providing the Services
which expenses shall be evidenced in such manner as the Company may
specify from time to time and for these purposes it shall be proper for
the Consultant to use the same standard of travel and accommodation as
authorised from time to time to any executive director of the Company.
6. NON-COMPETE, NON-SOLICITATION
6.1 The Consultant covenants and agrees that, during the Consultancy and
for the following periods after the termination of this Agreement
howsoever arising (save with the prior written consent of the Board of
the Company which shall not be unreasonably refused or delayed)
directly or indirectly, either alone or jointly with or on behalf of
any person, firm, company or entity and whether on his own account or
as principal, partner, shareholder, director, employee, consultant or
in any other capacity whatsoever, the Consultant shall not:
(i) for 12 months following termination in the Relevant Territory
(as defined in Clause 8(b) below) and in competition with the
Company or any of the Relevant Group Companies engage, assist
or be interested in any undertaking which provides
services/products similar to those provided by the Company or
any Relevant Group Companies;
(ii) for 12 months following termination in the Relevant Territory
solicit or interfere with or endeavour to entice away from the
Company or any of the Relevant Group Companies any person,
firm, company or entity who was a customer or potential
customer of the Company or any of the Relevant Group
Companies;
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(iii) for 12 months following termination in the Relevant Territory
be concerned with the supply of services/products to any
person, firm, company or entity which was a customer or
potential customer of the Company or any of the Relevant Group
Companies where such services/products are in competition with
those services/products supplied by the Company or any of the
Relevant Group Companies;
(iv) for 12 months following termination offer to employ or engage
or solicit the employment or engagement of any person who
immediately prior to the date of termination was an employee,
contractor or director of the Company or any of the Relevant
Group Companies (whether or not such person would commit any
breach of their contact of employment or engagement by reason
of leaving the service of such company);
(v) represent himself as being in any way connected with or
interested in the business of the Company or any of the
Relevant Group Companies other than in his capacity as a
shareholder of any such company; and
(vi) provided, however, that the provisions of Section 6.1(i), (ii)
and (iii) of this Section 6.1 shall only extend and shall only
be applicable to the extent that Consultant, directly or
indirectly, as an employee, director, officer, shareholder,
partner, or advisor, consultant or otherwise, engages in any
commercial activity or participates in any venture of any kind
that directly competes with the Company with respect to the
development, marketing, testing, manufacture or delivery of
women's contraception or estrogen replacement products within
the U.S., which are substantially similar to those of the
Company, and Consultant shall be free of the restrictions of
said Sections 6.1(i), (ii), and (iii) and shall be free at all
time to compete with the Company in any manner with respect to
any other products or business of the Company.
6.2 For the purposes of Clause 6:
(i) a "RELEVANT GROUP COMPANY" means the Company and all
subsidiary (as defined in clause 1) and associated companies
(as defined in clause 1) of the Company for which the
Consultant has performed services or in which he has held
office and, if applicable, their predecessors in business;
(ii) "RELEVANT TERRITORY" means the area constituting the market of
the Company or any of the Relevant Group Companies for
products and services with which the Executive shall have been
concerned during the term of his employment with the Company
and/or Xxxxxx Xxxxxxxx, Inc.; and
(iii) "POTENTIAL CUSTOMER" means any entity, person or otherwise
that the Company and any of the Relevant Group Companies has
actively solicited business during the 12 month period prior
to the Consultant's termination of consultancy.
6.3 Nothing contained in this Clause 6 shall prohibit the Consultant from
holding shares or securities of a company any of whose shares or
securities are quoted or traded on any recognised investment or stock
exchange provided that any such holding shall not exceed three percent
of the issued share capital of such a company and is held passively by
way of bona fide investment only.
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6.4 If, at the time of enforcement of this clause 6 a court shall hold that
the duration, scope or area restrictions stated herein are unreasonable
under circumstances then existing, the parties agree that the maximum
duration, scope or area reasonable under such circumstances shall be
substituted for the stated duration, scope or area and that the court
shall be allowed to revise the restrictions contained herein to cover
the maximum period, scope and area permitted by law. The Consultant
agrees that the restrictions contained in this clause 6 are reasonable.
6.5 In the event of the breach or a threatened breach by the Consultant of
any of the provisions of this clause 6, the Company, in addition and
supplementary to other rights and remedies existing in its favour, may
apply to any court of law or equity of competent jurisdiction for
specific performance and/or injunctive or other relief in order to
enforce or prevent any violations of the provisions hereof (without
posting of any bond).
7. CONFIDENTIALITY
7.1 The Consultant shall not (whether before or after the Termination Date)
except in the proper course of providing the Services or as required by
law or as authorised by the Company use or communicate to any third
party (and shall use his best endeavours to prevent the use or
communication of) any trade or business secrets or confidential
information of or relating to the Company or any Group Company
concerning the business or finances or any dealings transactions or
affairs of any Group Company.
7.2 The Consultant shall not make (other than for the benefit of the
Company) any record (whether on paper, computer memory, disc or
otherwise) relating to any matter within the scope of the business of
the Company or any Group Company or their customers and suppliers or
concerning any of its or their dealings or affairs or (either during
the Consultancy or thereafter) use or permit to be used any such
records other than for the benefit of the Company, it being agreed by
the parties that all such records (and copies thereof) shall be the
property of the Company and shall be handed over to the Chief Executive
Officer of the Company by the Consultant on the Termination Date or (at
the request of the Board) at any time during the Consultancy.
7.3 The Consultant shall not during the Consultancy either directly or
indirectly publish any opinion, fact or material on any matter
connected or relating to the business of the Company or any Group
Company whether confidential or not without the prior written approval
of the Company.
8. INTELLECTUAL PROPERTY
The Consultant agrees that any work prepared for the Company which is
eligible for United States copyright protection or protection under the
Universal Copyright Convention, the Berne Copyright Convention and/or
the Buenos Aires Copyright Convention shall be a work made for hire and
ownership of all copyrights (including all renewals and extensions)
therein shall vest in the Company. If any such work is deemed not to be
a work made for hire for any reason, the Consultant hereby grants,
transfers and assigns all right, title and interest in such work and
all copyrights in such work and all renewals and extensions thereof to
the Company, and agrees to provide all assistance reasonably requested
by the Company in the establishment, preservation and enforcement of
the Company's copyright in such work, such
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assistance to be provided at the Company's expense but without any
additional compensation to the Consultant. The Consultant hereby agrees
to and does hereby waive the enforcement of all moral rights with
respect to the work developed or produced hereunder, including without
limitation any and all rights of identification of authorship and any
and all rights of approval, restriction or limitation on use or
subsequent modifications.
9. TERMINATION BY EVENTS OF DEFAULT
The Company may at any time and without prejudice to any rights or
claims it may have against the Consultant terminate the Consultancy by
notice and with immediate effect and without any liability to pay any
remuneration compensation or damages if at any time the Consultant:
(i) The Consultant's commission of any fraud, misappropriation or
gross and wilful misconduct which causes demonstrable injury
to the Company or a subsidiary or other Group Company;
(ii) An act of dishonesty by the Consultant resulting or intended
to result, directly or indirectly, in gain or personal
enrichment at the expense of the Company or a subsidiary or
other Group Company;
(iii) Conviction of, or a plea of nolo contendere with respect to a
non-vehicular felony or a crime involving moral turpitude;
(iv) Wilful or repeated failure to follow specific directives of
the Board to act or refrain from acting, which directives are
consistent with the Consultant's position; and
(v) Failure lasting at least 30 consecutive calendar days to
discharge his duties under this Agreement due to gross
negligence;
any delay by the Company in exercising such right to terminate shall
not constitute a waiver thereof.
10. OBLIGATIONS UPON TERMINATION
On the Termination Date the Consultant shall:
10.1 ensure that all rights in respect of work done and services rendered
and the products thereof prior to the Termination Date shall remain
vested absolutely in the Company; and
10.2 deliver to the Board all documents (including, but not limited to,
correspondence, lists of clients or customers, plans, drawings,
accounts and other documents of whatsoever nature and all copies
thereof, whether on paper, computer memory or otherwise) made or
compiled or acquired by the Consultant during the Consultancy and
concerning the business, finances or affairs of the Company or any
Group Company or its or their clients and any other property of any
Group Company.
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11. STATUS
11.1 The Consultant acknowledges that he will be an independent contractor
of the Company and that nothing in this agreement shall render him an
employee, agent or partner of the Company and he shall not hold himself
out as such.
11.2 The Consultant covenants that he will be responsible for and shall pay
all U.S. federal, state and local income and self-employment taxes,
imposed by reason of his engagement hereunder and the receipt of the
Consultancy Fee. The Consultant's covenants under this Section 11.2
shall not affect the provisions of Section 4(h), (i), (j) and (k) of
the Employment Agreement between the Consultant and the Company.
12. NOTICES
Any notice to be given hereunder shall be in writing. Notices may be
given by either party by personal delivery or post or fax addressed to
the other party at (in the case of the Company) its registered office
for the time being and (in the case of the Consultant) his last known
address and any such notice given by letter or fax shall be deemed to
have been served at the time at which the letter was delivered
personally or transmitted or (if sent by post) would have been
delivered in the ordinary course of post.
13. PREVIOUS CONTRACTS
13.1 Except for the obligations and agreements set forth in the Separation
Agreement this agreement is in substitution for any previous
arrangement between the Company or any Group Company and the Consultant
which shall be deemed to have been terminated by mutual consent as from
the commencement of the Consultancy. Nothing contained in this
agreement shall in any way limit or diminish any amounts due to, or
rights accruing to, Consultant under the Separation Agreement.
13.2 The Consultant hereby warrants and represents of the Company that he
will not, in entering into this agreement or carrying out the Services,
be in breach of any other obligation binding upon him.
14. GENERAL
14.1 The provisions of schedules 1 and 2 hereto form part of this agreement
which contains the whole of the terms agreed in respect of the
Consultant's appointment as from the commencement of the Consultancy
and this agreement shall only be capable of being varied by a
supplemental agreement or memorandum in writing signed by or on behalf
of the parties hereto.
14.2 The headings in this agreement are inserted for convenience only and
shall not affect its construction.
14.3 Any reference to a statutory provision shall be construed as a
reference to any statutory modification or re-enactment thereof
(whether before or after the date hereof) for the time being in force.
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14.4 The schedules form part of and are incorporated into this agreement.
14.5 No modification, variation or amendment of this agreement shall be
effective unless such modification, variation or amendment is in
writing and has been signed by or on behalf of both parties.
15. GOVERNING LAW
Any dispute, controversy, proceedings or claim of whatever nature
arising out of or relating to, or breach of, this agreement shall be
governed by and this agreement shall be construed in all respects in
accordance with the laws of the state of New Jersey in the United
States of America.
16. ASSIGNMENT AND SUB-CONTRACTING
The Consultant shall not assign or sub-contract any of his rights or
duties under this agreement without the consent in writing of the
Company.
17. WAIVER
No waiver of any right hereunder at any time shall affect either
party's right to claim any future entitlement to the same.
IN WITNESS whereof this agreement has been executed as a deed on the date first
above written.
Signed as a deed and delivered by )
XXXXX X XXXXXXX in the presence of: ) [XXXXX X. XXXXXXX] SIGNED
)
Witness name: Xxxxx X. Xxxxx
Witness address: 000 X. Xxxxxx Xxxxx
Xxxxxxx, XX. 00000
Signed as a deed by )
XXXXXX XXXXXXXX PUBLIC )
LIMITED COMPANY acting by a )
director and its secretary/two directors:
Director [XXXX X. XXXXXXXXX] SIGNED
Director/Secretary [XXXXX
XXXXXXXXXXXX] SIGNED
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SCHEDULE 1
THE RETAINED PERIOD
1. Such periods as may be reasonably necessary for the Consultant to
devote to the business of the Company or any Group Company to provide
the Services provided however that the Consultant may not be required
to devote (as aforesaid):
1.1 more than eight hours per day; or
1.2 more than 10 days per month.
2. The actual days to be spent by the Consultant in providing the Services
shall (wherever practicable) be agreed between the Company and the
Consultant not less than one week in advance of each month of the
Consultancy. In default of agreement between the parties as to the days
so to be spent the Company shall be entitled to require the Consultant
to provide services on such days as the Company may by not less than 14
days' notice specify unless prior to such notice being given the
Consultant shall have notified the Company that he shall be unavailable
on such dates.
3. If the Consultant is unable to work due to illness or injury on any day
upon which it was agreed under paragraph 2 of this schedule that he
would provide the Services he shall notify the Chief Executive Officer
of the Company as soon as reasonably practicable stating:
3.1 the reason for his unavailability and the anticipated duration; and
3.2 (as soon as he knows) the date on which he is again available for work.
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APPENDIX I
SEPARATION AGREEMENT AND MUTUAL RELEASE
XXXXX XXXXXXX
2(a) Base Salary: $350,000
2(c) Release and Covenants Lump Sum: $400,000
