Exhibit 4.3
| SMITHKLINE XXXXXXX CORPORATION |
This Agreement is made
on 27 July 2004 between:
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(1) |
SMITHKLINE XXXXXXX CORPORATION whose registered office is at Xxx Xxxxxxxx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, XXX (the “Company”);
and |
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(2) |
XXXXXXXX XXXXXX (the “Executive”). |
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| 1.1 |
In this Agreement (and any schedules to it) |
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“Accrued Obligations” means: |
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1.1.1 |
the Executive’s full salary under this Agreement through to the end of
the month in which the Termination Date occurs at the rate in effect on the Termination
Date and the reimbursement (in accordance with Group Policy) of any expenses
incurred by the Executive prior to the Termination Date; |
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1.1.2 |
any unpaid bonus pertaining to the previous financial year and the product of
any target bonus for the financial year in which the Termination Date occurs
and a fraction, the numerator of which is the number of days in the
Company’s current financial year up to the Termination Date and the denominator
of which is 365; |
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1.1.3 |
any remuneration previously deferred by the Executive (together with any accrued
interest) and not yet paid by the Company including payment for any accrued holiday
not taken by the Executive; and |
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1.1.4 |
any other benefits to which the Executive is entitled, as determined in accordance
with the applicable plans and policies of the Company; |
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“Board” means
the board of directors of the Company from time to time or any person or
committee nominated by that board as its representative for the purposes
of this Agreement; |
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“Chief Executive Officer” means
the Chief Executive Officer of GSK plc from time to time; |
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“Employment” means
the employment governed by this Agreement; |
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“Group” means
the Company and any other Company controlling, controlled by or under the
direct or indirect common control of the Company, including, without limitation,
GSK plc and any of its subsidiaries from time to time; |
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“Group Company” means
a member of the Group and “Group Companies” will be interpreted
accordingly; |
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“GSK Board” means
the board of directors of GSK plc from time to time or any person or committee
nominated by that board as its representative for the purposes of this Agreement; |
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“Termination Date” means
the date on which the Employment terminates, whether on the expiration of
notice to terminate the Employment pursuant to Section 3 or otherwise pursuant
to this Agreement; |
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1.2 |
References to any statutory provisions include any modifications or re-enactments
of those provisions. |
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1.3 |
In this Agreement terms used in the context of the GlaxoSmithKline Share Option
Plan and Performance Share Plan shall have the meaning ascribed to them in such
plans. |
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The Company confirms the employment of the Executive, and the Executive confirms his employment with the Company, on the terms and conditions set out in this Agreement. |
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| 3.1 |
The Executive’s continuous employment began on 14 January
1996. |
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| 3.2 |
The Employment under the terms of this Agreement shall be deemed to have commenced
on 1 January 2004 and the Employment shall continue until: |
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(i) |
the Employment is otherwise terminated in accordance with this Agreement; or |
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(ii) |
not less than 12 calendar months’ notice in writing is given by the Company
to the Executive; or |
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(iii) |
not less than 12 calendar months’ notice in writing is given by the Executive
to the Company; or |
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(iv) |
the first day of the month coincident with and next following the date on which
the Executive attains age 62 In the event that this Agreement shall terminate
pursuant to this Clause 3.2(iv), then the Executive shall thereafter be deemed
an Employee at will and shall be entitled only to payment of Accrued Obligations. |
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3.3 |
The Company may, in its absolute discretion, lawfully terminate the employment
of the Executive at any time by paying to the Executive the Lump Sum set out
in Section 15.1.5. |
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4 |
Duties and Responsibilities |
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| 4.1 |
The Executive is the Chairman, R&D of GSK plc. This position is classified
as grade Band A, tranche 2. The Executive shall have such powers and duties as
are from time to time given to him by the Chief Executive Officer or, if different,
the person to whom the Executive reports, consistent with the Employment and
this Agreement. |
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| 4.2 |
During the Employment, the Executive shall devote his full business time and
energies to the business and affairs of the Company and GSK plc, consistent with
any other duties and responsibilities he may have to any Group Companies. The
Executive’s time shall be allocated among the Group Companies in accordance
with the Executive’s reasonable judgment and dependent upon the level of
his responsibilities to any other Group Company, subject to the overall supervision
and direction of the Chief Executive Officer or, if different, the person to
whom the Executive reports. |
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| 4.3 |
The Executive shall not, without the prior written consent of the GSK Board,
accept directorships, trusteeships and other appointments (other than of Group
Companies) or carry on or be engaged, concerned or interested either directly
or indirectly in any other business or activity. A list of the directorships
and outside interests of the Executive approved by the GSK Board as at the date
of this Agreement is attached as Appendix 1 to this Agreement. Any fees earned
by the Executive in respect of such authorised activities may be retained by
the Executive. |
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4.4 |
The location of the Executive’s activities shall be in Philadelphia, Pennsylvania,
but subject to the overall supervision and direction of the Chief Executive Officer,
and to perform properly his duties, he may be required to undertake reasonable
travel elsewhere in the world. The Executive is required to reside at a location
convenient to the Company’s offices in Philadelphia, Pennsylvania (or such
other location as the Company
may determine) during the Employment. |
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| 5.1 |
In consideration of the services to be rendered by the Executive under this Agreement
the Executive shall be paid a salary at the rate of $725,000 per annum payable
in accordance with the Company’s pay practices for its executives from
time to time in force (but not less frequently than calendar monthly). The salary
will be credited to the Executive’s bank account notified to the Company
for the purpose. Salary shall be reviewed annually in accordance with the Company’s
normal administrative practices for its executives and may be increased (but
not reduced) by the Company by such amount (if any) as it shall think fit. |
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| 5.2 |
The Executive shall be entitled, subject to Section 6.4, to participate |
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(i) |
in all such cash bonus plans and programmes as are made available from time to
time for executives of the Company generally of the same grade in the relevant
jurisdiction in accordance with the Company’s policy (or GSK plc’s
policy, as applicable); and |
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(ii) |
in respect of the salary provided by Section 5.1, in such incentive programmes
as are made available from time to time for executives of the Company and/or
GSK plc generally who are of the same grade in the relevant jurisdiction, |
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in each case, subject to the
terms and conditions of such bonus plans and programmes from time to time
in force. Any grant of share options or awards of performance shares under
such plans and programmes shall be granted subject to performance conditions
as determined by the GSK Board. Any shares received under the Performance
Share Plan-US concerning Target Awards granted in respect of any Performance
Period commencing on or after 1st January
2004 must be held by the Executive for a period of 2 years following vesting.
For the avoidance of doubt, the two year period commences the day next after
the cessation of the Performance Period, notwithstanding that the Executive
may defer payment of such a Final Award in accordance with the rules of the
plan. The Executive’s future participation in certain of these plans
and programmes may be affected if the Executive does not satisfy the Share
Ownership Requirements (as amended from time to time). It is agreed that
in the event of the Executive retiring from the Company, the Executive will
retain the relevant number of shares (as set out in the Share Ownership Requirements)
until at least one year after the earlier of (i) the date upon which the
Executive retires from the Company in accordance with the terms of any Company
policy that may be in force from time to time, or (ii) the date on which
the Executive’s
employment is terminated pursuant to Section 3.2(iv) of this Agreement. |
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| 5.3 |
The Executive’s
salary under Section 5.1 of this Agreement shall be inclusive of any fees
or other remuneration to which the Executive may be entitled or receives
as a Director, alternate Director, specialist adviser, consultant or by virtue
of any other office or appointment in any Group Company. The Executive shall
account to the Company for all such fees or other remuneration by paying
over or procuring to be paid over the same to the Company. |
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6 |
Expenses and other Benefits |
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6.1 |
The Company shall promptly reimburse to the Executive all reasonable travel and
other out of pocket expenses properly incurred by him in the performance of his
duties under the Employment. The Executive will submit claims for expenses reimbursement
to the Company regularly with appropriate supporting documentation. |
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6.2 |
The medical benefit arrangements for the Executive and his family are as set
out in the GlaxoSmithKline Executive Medical Plan (as amended from time to time).
Details, including eligibility criteria, are set out in the TotalReward section
on myGSK. |
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6.3 |
The Company at its expense shall provide the Executive with other benefits provided
to executives of the Company of the same grade, and the Executive shall be entitled
to participate in all benefit plans, practices and policies as are made available
by the Company from time to time to its executives generally of the same grade
subject to their terms and conditions from time to time in force. A list of all
plans and programmes currently in operation is set out in Appendix 2. Details
of the relevant plans and programmes are set out in the TotalReward section
on myGSK. |
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6.4 |
The Company (and GSK plc, as applicable) reserves the absolute right and discretion
to amend, modify or terminate all such benefits, plans and programmes as are
referred to in Sections 5.2, 6.2, 6.3 and 8 at any time and for any reason. |
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In addition to all Company
Holidays, the Executive shall be entitled to 25 days’ vacation in each
year at full pay in accordance with Company policy from time to time in force,
which shall accrue rateably during the calendar year, to be taken at such
times as the business of the Company may permit. On termination of the Employment
the Executive will be entitled to be paid for any accrued vacation not taken
and will reimburse the Company for any vacation taken but not accrued. |
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Vacation which is not taken
in the year in which it is accrued may be carried forward, in accordance
with the Company’s rules on the banking of vacation outlined in its
Vacation Policy, as amended from time to time. Any vacation which is not
banked in accordance with these rules will be lost. |
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8 |
Pension and Life Insurance |
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The Executive shall be entitled
to participate in the GlaxoSmithKline Cash Balance Pension Plan and the GlaxoSmithKline
Supplemental Pension Plan and any other retirement plans or deferred compensation
programmes made available by the Company to its senior executives in the
United States, including, without limitation, the GlaxoSmithKline Retirement
Savings Plan, GlaxoSmithKline Executive Supplemental Savings Plan and GlaxoSmithKline
Annual Investment Plan (US), subject to the terms and conditions of such
programmes from time to time in force. Details of such current plans and
programmes are set out in the TotalReward section on myGSK and are subject
to amendment or withdrawal at the Company’s discretion. |
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During the Executive’s period of Employment with the Company, or as otherwise provided under the Company’s benefit plans, the Company will credit the Executive with a retirement pension benefit in an amount equal to eighteen per cent (18%) of the Executive’s
base salary and bonus paid during the calendar year, or portion thereof.
Company credits will be made in instalments with each payroll period. Company
credits will be made to the GlaxoSmithKline Cash Balance Pension Plan to
the extent permitted under current plan rules and relevant Treasury Regulations,
with the remainder contributed to the GlaxoSmithKline Supplemental Cash Balance
Pension Plan. |
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9.1 |
The Executive shall comply with the Company’s sick pay rules from time
to time in force. |
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9.2 |
The Executive shall be entitled to participate in the Company’s short-term
and long-term disability plans or programmes in force from time to
time. |
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9.3 |
The Company may require the Executive to have a medical examination every year
(or at such shorter intervals as they may agree between them), by a doctor approved
by the Company. The costs of such examinations shall be borne by the Company.
The Executive shall authorise such doctor to submit to the Director of Human
Resources of the Company a copy of the medical report or results of any tests
prepared or obtained as a result of that examination (which shall omit reference
to any medical condition which in the doctor’s opinion would not affect
the Executive’s
capability to perform his duties then or in the future). |
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10 |
Inventions and Copyright |
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The Company’s standard
policy on inventions and copyright from time to time in force shall apply
to the Executive. |
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11 |
Confidentiality; Company Securities |
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11.1 |
Without prejudice to any other duty owed to the Company or to any Group Company,
the Executive shall not, except in the proper performance of his duties or as
authorised by the Board, during or after the Employment, use or disclose to any
person any Confidential Information obtained by him during the Employment. |
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11.2 |
In the course of the Employment, the Executive is likely to obtain trade secrets
and confidential information belonging to or relating to Group Companies and
other persons. He will treat such information as if it falls within the terms
of Section 11.1 and Section 11.1 will apply with any necessary amendments to
such information. If requested to do so by the Company, the Executive will enter
into an agreement with other Group Companies and any other persons in the same
terms as Section 11.1 with any amendments necessary to give effect to this provision. |
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11.3 |
For the purposes of this Agreement, the term “Confidential Information” shall
include, but not be limited to confidential commercial, financial and strategic
data pertaining to the Group and any other confidential information relating
to the business or affairs of the Group including, without limitation, any invention,
trade secret, manufacturing process or patent information. The term “Confidential
Information” shall
not include any information: |
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11.3.1 |
which is or becomes generally available to the public, or |
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11.3.2 |
which is acquired by the Executive apart from his association with the Group |
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other than, in each case, as a result of disclosure by the Executive or by any person to whom he has supplied information or by any person in breach of a duty of confidentiality. |
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In addition, the term “Confidential Information” shall
not include any information which the Executive is required to disclose by
applicable law or regulation or by order of a court or governmental body
of competent jurisdiction, so long as the Executive gives the Chief Executive
Officer of the Company reasonable prior notice of such required disclosure. |
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11.4 |
During the Employment, the Executive shall be bound, in respect of transactions
in securities issued by any Group Company, by the Company’s and GSK plc’s
policies from time to time in effect on employee securities dealing. In particular,
the Executive shall advise the Company Secretary, CFO, CEO or Chairman of GSK
plc before he or any member of his immediate family seeks to trade in such securities
and shall be bound by any directions given by the Company Secretary, CFO, CEO
or Chairman. |
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12 |
General Termination Provisions |
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12.1 |
On the termination of the Employment for whatever reason, or at any other time
when requested to do so by the Company, the Executive, upon receipt of written
request from the Company, shall promptly |
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deliver up to the Company any property belonging to the Company or any other
Group Company which may be in his possession or under his control including Confidential
Information, lists of customers, correspondence, documents and other property.
The Executive will not retain any copies of any materials or other information.
The Company shall promptly return to the Executive and permit him to remove from
the premises of the Company and any other Group Company, any property, personal
records, files, etc. belonging to the Executive; and |
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(ii) |
resign on request by the Company or the GSK Board (if he has not already done
so) from all offices held by him in the Company and any other Group Company (except
for any he is entitled to retain under any separate agreement with any Group
Company), failing which the Executive irrevocably authorises the Company or GSK
plc to appoint an officer of the Company or GSK plc to execute all documents
on his behalf and do all things necessary to effect such resignations; PROVIDED,
however, that any such resignations pursuant to this Section 12.1(ii) shall be
without prejudice to the Executive’s rights under this Agreement. |
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12.2 |
Any termination of the Employment shall be without prejudice to
the Executive’s and the Company’s continuing obligations under this
Agreement. |
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12.3 |
Upon the termination of the Executive’s employment for whatever reason,
the Executive shall immediately repay all outstanding debts or loans due to the
Company or any Group Company and the Company is hereby authorised to deduct from
any payment of wages any sum in repayment of all or any part of such debts or
loans. |
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12.4 |
The terms of the US GSK Severance Policy as in force from time to time, shall
not apply to the Executive. |
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13 |
Termination due to Death or Disability |
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13.1 |
In the event of the Executive’s death the Employment will terminate automatically
on the date of his death, which shall be the Termination Date for the purposes
of this Agreement. His duly qualified executor shall be entitled to receive the
Accrued Obligations. |
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13.2 |
The Company may elect to terminate the Employment immediately without notice
or payment in lieu of notice by serving written notice (“Termination
Notice for Disability”), if an independent physician selected by the
Company has certified in writing that, by reason of a physical or mental illness
or other condition of the Executive, the Executive is unlikely to be able to
resume performance of duties under the Employment for the foreseeable future.
The Employment will terminate on the Termination Date specified in the Termination
Notice for Disability. Provided that the Company shall not be entitled to terminate
the employment by reason of physical or mental illness or other condition if
this would lead to the Executive becoming dis-entitled to benefits under the
Company’s or GSK plc’s permanent health insurance
plan. |
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13.3 |
In the event the Company delivers a Termination Notice for Disability, the Executive
shall immediately be relieved from all offices, appointments and responsibilities
that he may then hold under the Employment and be relieved of any duty to work
for or serve the Company or any Group Company. The Executive shall be entitled
only to the Accrued Obligations, together with such rights as are provided for
in the applicable benefits plan(s) in which the Executive participates. |
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14.1 |
The Company shall be entitled to terminate the Employment immediately without
notice or payment in lieu of notice for Cause (as defined in this Section 14)
by serving written notice (“Notice of Termination for Cause”). |
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14.2.1 |
the Executive is convicted of any criminal offence which in the reasonable opinion
of the Chairman of GSK plc or the GSK Board affects the Executive’s position
as Chairman R&D of GSK plc (other than a motoring offence for which no custodial
sentence is
given to him) ; or |
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14.2.2 |
the Executive, in carrying out his duties under the Employment, is guilty of
gross neglect or gross misconduct; or |
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14.2.3 |
the Executive shall become personally bankrupt or insolvent; or |
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14.2.4 |
the Executive shall be or become prohibited by law from being a director; or |
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14.2.5 |
the Executive commits a material breach of any term of this Agreement. |
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14.3 |
Any delay or forbearance by the Company in exercising any right of termination
shall not constitute a waiver of it. |
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14.4 |
In the event that the Employment is terminated for Cause, the Employment shall
terminate upon the date on which the Board serves Notice of Termination for Cause
and the Executive shall be entitled only to payment of all previously accrued
and unpaid salary then due and owing under this Agreement, up to the date of
termination including reimbursement for expenses previously incurred and, save
for the provisions of this Section 14.4, the Executive will have no claim for
damages or any other remedy against the Company or any Group Company. |
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15.1 |
If either notice to terminate the Employment is given by the Executive according
to Section 3.2 (iii) above, or if the Executive resigns without giving due notice
and the Company does not accept his resignation or the Company has given notice
in accordance with Section 3.2 (ii) above then the Company may require the Executive
to comply with any and all of the provisions in this Section 15.1 for a maximum
period of 12 months (the “Garden Leave Period”). |
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15.1.1 |
The Company may require that the Executive does not: |
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enter or attend the premises of the Company, or any Group Company; or |
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contact or have any communication with any customer or client of the Company,
or any Group Company in relation to the business of the Company, or any Group
Company; or |
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contact or have any communication with any employee, officer, director, agent
or consultant of the Company, or any Group Company in relation to the business
of the Company, or any Group Company; or |
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(iv) |
become employed or engaged by any company, partnership or other entity whether
as an employee, director, partner or consultant or carry on any business either
on his own account or for any other person whether directly or indirectly (except
as the holder, directly or indirectly, of less than 5 per cent of the shares
or save for those activities permitted in accordance with Section 4.3); |
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(v) |
remain or become involved in any aspect of the business of the Company, or any
Group Company except as required by such companies. |
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15.1.2 |
The Company may require the Executive: |
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(i) |
to comply with the provisions of Section 12; and |
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(ii) |
to immediately resign from any directorship which he holds in the Company, and
any Group Company or any other company where such directorship is held as a consequence
or requirement of the Employment, unless he is required to perform duties to
which any such directorship relates in which case he may retain such directorships
while those duties are ongoing. The Executive hereby irrevocably appoints the
Company to appoint an officer of GSK plc as his attorney to execute any instrument
and do anything in his name and on his behalf to effect his resignation if he
fails to do so in accordance with this Section 15.1.2(ii). |
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15.1.3 |
During any Garden Leave Period the Company may appoint another individual to
carry out the duties of the Executive and the Executive shall: |
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(i) |
continue to be bound by the provisions of this Agreement and conduct himself
with good faith towards the Company and not do anything that is harmful to the
Company or any Group Company; |
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(ii) |
remain available to perform any reasonable duty requested by the Company or any
Group Company and to co-operate generally with the Company or any Group Company
to ensure a smooth handover of his duties (provided that if the Executive should
fail to make himself available for such work having been requested by the Company
or any Group Company to attend he shall, notwithstanding any other provision
of this Agreement forfeit his right to salary and contractual benefits in respect
of such period of non-availability). |
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15.1.4 |
During the Garden Leave Period, the Executive will be entitled to receive his
salary and benefits in accordance with the terms of this Agreement including
any bonus payable in accordance with Section 5.2 but excluding any share entitlements
under Section 5.2 above. |
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15.1.5 |
Where the Company gives notice to terminate the Employment in accordance with
Section 3.2 (except where termination is effected pursuant to the terms of Section
14) above then notwithstanding the continuation of the Employment during any
period after notice has been given, including any Garden Leave Period, within
30 days of the date such notice was given to the Executive, the Company shall
pay to the Executive as a lump sum his full salary, bonus and 12 months pension
contributions at the rate of eighteen per cent (18%) of the Executive’s
full salary and bonus, in respect of the entire period of notice (except for
any part of it attributable to the period falling after the Termination Date
contemplated in Section 3.2(iv) and subject to deduction of tax and any other
deductions required to be made) (the “Lump Sum”). For this
purpose, full salary shall be the basic salary in effect at the date such notice
is given to the Executive, and bonus shall be calculated on the basis of the
Executive achieving 100 per cent of the target bonus at Bonus Level 1. For the
avoidance of doubt, the payment by the Company to the Executive of the Lump Sum
will extinguish any and all liability imposed on the Company under this Agreement
to make any further payment to the Executive in respect of salary and bonus under
this Agreement during any period after notice has been given, including, any
Garden Leave Period. |
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15.1.6 |
After the payment of a Lump Sum pursuant to Section 15.1.5, at the end of or
at any time during the Garden Leave Period the Company may at its sole and absolute
discretion terminate the Employment by further written notice to the Executive
without any further payment. In any event at the end of the 12 month Garden Leave
Period the Employment will also terminate automatically and the Company shall
be under no obligation to make any further payment to the Executive, save for
in respect of any Accrued Obligations that may exist. |
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15.1.7 |
However, in the event that the Executive obtains an offer of future alternative
employment with another employer, or otherwise wishes to take up alternative
business activities, and he can satisfy the GSK Board that such employment/activities
are not in breach of Section 16, the Company will waive the balance of any unexpired
notice period or the Garden Leave Period so as to enable the Executive to take
up such alternative employment/activities; whereupon, subject to Section 12.3
above, the Company’s obligations to the Executive under this Section 15.1
shall cease with effect from the agreed revised Termination Date. |
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15.1.8 |
The Company and the Executive agree that if the Company shall fully perform,
when due, all its obligations under this Section 15, such performance shall be
in full and final settlement of all and any claims or rights of action which
the Executive might have against the Company, or any Group Company arising out
of this Agreement or its termination or otherwise howsoever relating to the Employment. |
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15.1.9 |
A removal by the Company of the Executive from his current position which results
in a demotion to a position with less responsibility than his current position,
or a change in reporting relationships which results in the Executive no longer
reporting directly to the GSK Board, or any successor board, will be deemed to
be a termination by the Company on notice pursuant to Section 15 of this Agreement. |
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16 |
Restrictions during and after Termination of Employment |
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“Restricted Business” means
the businesses of the Company or any Group Company at the Termination Date
(or if earlier the start of any Garden Leave Period ending on the Termination
Date) with which the Executive was involved to a material extent during the
last 12 months of the Employment. |
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“Restricted Period” means
any period during which the Executive is employed by the Company (including
for the avoidance of doubt, any Garden Leave Period) and the period of 12
months, less any Garden Leave Period imposed by the Company under Section
15 and less any period of notice worked by the Executive during the notice
period set out in Section 3, commencing on the Termination Date. |
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16.2 |
The Executive is likely to obtain trade secrets and confidential information
and personal knowledge of and influence over customers, clients and employees
of the Company, GSK plc and its Group Companies during the course of the Employment.
To protect these interests, the Executive agrees with the Company and GSK plc
that the Executive will be bound by the following covenants: |
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16.2.1 |
During the Restricted Period he will not be engaged in (except as the holder,
directly or indirectly, of less than 5 per cent of the shares) any business which
is or is about to be in competition with the Restricted Business. |
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16.2.2 |
During the Restricted Period the Executive will not, canvass or solicit in competition
with the Company, or any Group Company the custom of any person who was during
the last 12 months of the Employment a customer, or client of, or in the habit
of dealing with, the Company, or (as the case may be) any Group Company and in
respect of which the Executive had access to confidential information or with
whose custom or business the Executive is or was personally concerned, during
that 12 month period with a view to providing goods or services to that person
in competition with any Restricted Business. |
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16.2.3 |
During the Restricted Period he will not, in the course of any business concern
which is in competition with the Restricted Business provide goods or services
to or otherwise have any dealings with any person who was during the last 12
months of the Employment a customer, or client of, or in the habit of dealing
with the Company, or any Group Company, and in respect of which the Executive
had access to confidential information or with whose custom or business the Executive
is or was personally concerned during that 12 month period. |
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16.2.4 |
During the Restricted Period he will not, interfere or endeavour to interfere
with the continuance of the provision of goods or services to the Company, or
any Group Company, by any supplier which was a supplier of goods or services
to the Company, or any Group Company during the last 12 months of the Employment
and with whom the Executive dealt to a material extent during that period. |
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16.2.5 |
During the Restricted Period he will not entice or try to entice away from the
Company or any Group Company any person who is still employed by the Company
or a Group Company during the Restricted Period and is a senior employee, director
or full time senior consultant of such a company and with whom he worked closely
in the last six months of the Employment. |
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16.3 |
Each of the obligations imposed on the Executive by this Section 16 extend to
him acting not only on his own account but also on behalf of any other firm,
company or other person and shall apply whether he acts directly or indirectly. |
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16.4 |
Following the Termination Date, the Executive will not represent himself as being
in any way connected with the businesses of the Company, GSK plc or of any other
Group Company (except to the extent agreed in writing by such a company). |
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16.5 |
Any benefit given or deemed to be given by the Executive to any Group Company
under the terms of Section 16 is received and held on trust by the Company for
the relevant Group Company. The Executive will enter into appropriate restrictive
covenants directly with other Group Companies if asked to do so by the Company
or GSK plc. |
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17 |
Reasonableness of Restrictions |
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17.1 |
Each of the obligations on the Executive contained in Section 16 constitutes
a separate and independent restriction on the Executive notwithstanding that
they may be contained in the same Section, paragraph or sentence. |
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17.2 |
Should the restrictions contained in Section 16 be found to be void but would
be valid if some part thereof were deleted or the period or radius of application
reduced, then such restriction shall apply with such modification as may be necessary
to make it valid and effective. In particular, the Executive agrees that the
restrictions are reasonable and necessary for the protection of the Company and
the Group Companies. |
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17.3 |
If the Executive shall, during the Restricted Period, receive from any person,
firm or company, an offer to provide services in any capacity whatsoever, or
to enter into employment where acceptance of such offer, or the taking of such
employment, might render him in breach of the provisions of this Agreement, he
shall promptly advise the offeror of the existence of the restrictions set forth
in Section 16 of this Agreement. |
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17.4 |
The Executive acknowledges that the Company may have no adequate remedy at law
and would be irreparably harmed if the Executive breaches or threatens to breach
the provisions of Section 16 above and, therefore, agrees that the Company shall
be entitled to injunctive relief to prevent any breach or threatened breach of
Section 16 above, and to specific performance of the terms of each such Section
in addition to any other legal or equitable remedy it may have. The Executive
further agrees that he shall not, in any equity proceedings involving him relating
to the enforcement of Section 16 above raise the defence that the Company has
an adequate remedy at law. Nothing in this Agreement shall be construed as prohibiting
the Company from pursuing any other remedies at law or in equity that it may
have. |
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In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions or portions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law. |
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19 |
Successors and Assigns |
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19.1 |
This Agreement shall be binding upon and inure to the benefit of the Company
or any corporation or other entity to which the Company may transfer all or substantially
all of its assets and business and to which the Company may assign this Agreement,
in which case “Company”, as used in this Agreement, shall
mean such corporation or other entity. The foregoing shall not relieve the Company
of any of its obligations under Section 15 of this Agreement. The rights of the
Executive shall inure to the benefit of his heirs, executors, administrators
and other personal representatives. |
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19.2 |
The Executive may not assign this Agreement or any part of it, or any rights
thereunder or delegate any duties to be performed by him under it to anyone else. |
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To the extent contemplated by this Agreement, respective rights and obligations of the parties set out in this Agreement shall survive any termination of this Agreement to the extent necessary to the intended preservation of such rights and obligations. |
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Any notice (including any Termination Notice) required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given when delivered personally or sent by courier, duly addressed to the party concerned at the address set out above or to such other address as the party may notify to the other. Any notice delivered personally under this Section 21 shall be deemed given on the date delivered and any notice sent by courier shall be deemed given on the date delivery is recorded by such courier. |
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22.1 |
This Agreement supersedes any previous written or oral agreement between the
parties in relation to the matters dealt with in it. It, together with such letter
of appointment, contains the whole agreement between the parties relating to
the Employment at the date the agreement was entered into (except for those terms
implied by law which cannot be excluded by the agreement of the parties). The
Executive acknowledges that he has not been induced to enter into this Agreement
by any representation, warranty or undertaking not expressly incorporated into
it. |
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22.2 |
Neither party’s rights or powers under this Agreement will be affected
if: |
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22.2.1 |
one party delays in enforcing any provision of this Agreement; or |
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22.2.2 |
one party grants time to the other party. |
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23 |
Amendment or Modification; Waiver |
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No provision of this Agreement may be amended or waived unless such amendment or waiver is agreed to in writing, signed by the Executive and by a duly authorised officer of the Company who shall supply the Executive with evidence of such authority. |
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Anything to the contrary notwithstanding, all payments required to be made by the Company under this Agreement to the Executive, or to his estate or beneficiaries, shall be subject to withholding of such amounts relating to taxes as the Company may be required to withhold pursuant to any applicable statute, law or regulation. |
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25 |
Indemnification and Insurance |
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| 25.1 |
The Company agrees that if the Executive is made a party or is threatened to
be made a party to any action, suit, proceeding or governmental or other investigation
by reason of the fact of the Employment or that he is or was a director, officer
or employee of the Company or is or was serving at the request of the Company
as a director, officer, employee or agent of another Group Company or entity
except for any action instigated by the Company or the
Executive (a “Proceeding”), he shall be indemnified by the
Company to the fullest extent permitted by applicable law against all expenses,
liabilities and losses reasonably incurred or suffered by the Executive in connection
with such a Proceeding (including any tax payable by the Executive as a result
of payments made by the Company pursuant to this indemnity), including, without
limitation, payment of expenses incurred in defending a Proceeding prior to the
final disposition of such Proceeding; PROVIDED, however, that written notice
of such Proceeding is given promptly to the Company by the Executive and the
Company is permitted (where appropriate) to participate in and assume the defence
of such Proceeding. The provisions of this Section 25 shall survive the termination
of the Employment and shall be in addition to any other rights to indemnification
to which the Executive may from time to time be entitled, whether under any applicable
insurance policies or otherwise. |
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| 25.2 |
The Company will provide the Executive with Legal Expenses Insurance
and Directors’ and Officers’ Liability Insurance under the Company’s
policy current from time to time in force subject to such cover being available
at reasonable commercial rates. |
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26 |
Collective Agreements – Disciplinary Rules and Procedures |
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There are no collective agreements which directly affect the terms and conditions set out in this Agreement. |
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The Company’s harassment
and bullying policies, disciplinary rules and procedures and grievance procedures,
as in force from time to time, shall apply to the Executive. The Company
reserves the right to leave out any or all of the stages of those rules and
procedures where it considers it appropriate to do so. |
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The Executive consents to the
Company or any Group Company holding and processing both electronically and
manually the data it collects which relates to the Executive for the purpose
of the administration and management of its employees and its business and
for compliance with applicable procedures, laws and regulations. The Executive
also consents to the transfer of such personal information to other offices
the Company may have or to a Group Company or to other third parties whether
or not outside the United States for administration purposes and other purposes
in connection with the Executive’s employment where it is necessary
or desirable for the Company to do so. |
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This Agreement shall be deemed
a contract made under, and for all purposes shall be construed in accordance
with, the laws of the Commonwealth of Pennsylvania. Each of the parties submits
to the exclusive jurisdiction of the Commonwealth of Pennsylvania’s
courts as regards any claim or matter under this Agreement. |
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Titles to the Sections in this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the title of any Section. |
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In witness whereof the parties hereto have executed this Agreement as a deed on the day and year first above written |
SMITHKLINE XXXXXXX CORPORATION
| By: |
/s/ Xxxxxx X. Xxxxxx |
| Name: |
Xxxxxx X. Xxxxxx |
| Title: |
Vice President & Secretary |
| Date: |
July 22, 2004 |
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|
Signed Sealed and Delivered
by the
said XXXXXXXX XXXXXX in the
presence of: |
} |
/s/ Xxxxxxxx
Xxxxxx |
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| Name: |
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| Address: |
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| Occupation |
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15
Appendix 1: Schedule of Directorships and Outside Interests
A list of the directorships and outside interests of the Executive approved by the GSK Board as at the date of this Agreement is set out below:
| Company Name |
Title |
| |
|
| National Board of Medical Examiners |
Director |
| SmithKline Xxxxxxx plc. |
Director |
| SmithKline Xxxxxxx Corporation |
Director |
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Appendix 2: Other Benefits
TotalReward makes the spirit of GSK an everyday reality for our people and is a major building block for achieving our mission. The principles have been developed to ensure that the interest of our employees is very closely aligned with GSK's.
TotalReward is a competitive package designed to attract, retain, motivate and develop the best talent. At the same time, it is cost-effective, benefiting GSK and our employees. Below is a list providing examples of the benefits currently provided as at the date of the contract.
TotalReward includes:
Total Cash opportunities – Salary,
Bonus, Share Option Plan, Performance Share Plan
Long term savings and retirement
plans – Cash Balance Pension Plan, Retirement Savings Plan, Executive
Supplemental Savings Plan (ESSP)
An array of comprehensive benefits
to protect your health and welfare programs to help you better balance your
work life and your personal life – Executive Life Insurance Plan, Executive
Medical Plan, Retiree Medical Plan.
The Executive’s future
participation in certain of these plans and programmes may be affected if
he does not satisfy the Share Ownership Requirements (as amended from time
to time).
Details of the relevant plans and programmes and Share Ownership Requirements are set out in the TotalReward section on myGSK.
The Company reserves the right to amend, modify or withdraw the benefits, from time to time.
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