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EXHIBIT 10.16
EMPLOYMENT AGREEMENT
AGREEMENT dated 1st July 2001 (the "Effective Date") by and between VIRAGEN
(SCOTLAND) LIMITED, a company registered in Scotland with registered number
155387 and having a place of business at Xxxxxxxxx Xxxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxx, Xxxxxxxxxx XX00 0XX ("Employer"), and XX. XXXXXX XXXXXX NICOLSON,
Xxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxx X00 0XX ("Employee").
WITNESSETH:
WHEREAS, Employer desires to employ the Employee upon the terms and conditions
hereinafter set forth and Employee desires to accept employment upon such terms
and conditions; and
WHEREAS, Employer and Employee desire to set forth in writing the terms and
conditions of their agreements and understandings with respect to Employee's
employment by Employer.
NOW, THEREFORE, Employer hereby employs Employee and Employee hereby accepts
employment under the following terms and conditions:
1. DEFINITIONS
In this Agreement unless the context otherwise requires, the following
expressions have the following meanings:
"THE BOARD" means the Board of Directors for the time being of
Employer or any committee duly appointed by the
Board of Directors;
"THE EMPLOYMENT" means the Employee's employment under this
Agreement;
"GROUP COMPANY" means any holding company for the time being of
Employer or any subsidiary for the time being of
Employer or of any such holding company (other than
Employer) (for which purpose the expressions
"holding company" and "subsidiary" shall have the
meaning ascribed thereto by Section 736 of the
Companies Act 1985).
2. EMPLOYMENT
Employer hereby employs Employee, and Employee hereby accepts employment
by Employer, upon all the terms and conditions hereinafter set forth.
3. TERM
Subject to the provisions for earlier termination set forth in clause 15
hereof this Agreement commenced on 1 July 2001 and shall continue until
the close of business on 30 June 2003 (the "Employment Term"). Subject to
the provisions for earlier
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termination set forth in clause 15 hereof, from 1 July 2003, and annually
on the 1st July thereafter, the Employment Term of this Agreement shall
automatically be renewed for one additional year until and unless
Employee or Employer has given to the other at least 90 days notice prior
to the relevant 1 July date that the Employment Term of this Agreement is
not to be renewed.
4. CONTINUOUS EMPLOYMENT
Employee's employment with Employer in terms of this Agreement is
continuous with his previous employment with Employer which commenced on
1st April 1996.
5. EMPLOYEE'S REPRESENTATIONS AND WARRANTIES
Employee represents and warrants to Employer that he is free to accept
employment with Employer as contemplated herein and has no other written
or oral obligations or commitments of any kind or nature which would in
any way interfere with his acceptance of employment pursuant to the terms
hereof or the full performance of his obligations hereunder or the
exercise of his best efforts in his employment hereunder.
6. DUTIES AND EXTENT OF SERVICES
Employee shall be employed as Employer's Managing Director and Chief
Operating Officer of the Group Companies Viragen (Europe) Limited and
Viragen Inc. As such, Employee shall, subject to the direction of the
Board, supervise and conduct the Employer's operations and affairs as
assigned by the Board, and perform such other duties and responsibilities
as may be assigned to Employee from time to time consistent with such
title by the Board including where such duties require Employee to work
for any Group Company. Employee accepts that he may be required to
perform other tasks or duties outwith the scope of his normal duties.
Employee agrees to devote sufficient time, skill, attention and energy
diligently and competently to perform the duties and responsibilities
reasonably assigned to him hereunder or pursuant hereto to the best of
his abilities. Employee shall use his best efforts to be loyal and
faithful at all times and constantly endeavor to improve his ability and
his knowledge of the business of Employer in an effort to increase the
value of his services for the mutual benefit of Employer and Employee.
Employer may at its sole discretion transfer this Agreement or second
Employee to any Group Company at any time.
Employer reserves the right to suspend all or any of Employee's duties
and powers on such terms as it considers expedient (including a term that
Employee shall not attend at Employer's premises) or to require Employee
to carry out the duties of another position of equivalent status either
in addition to or instead of his duties as Managing Director of Employer
and Chief Operating Officer of the Group Company, Viragen Inc. During any
period of suspension, Employee will not be entitled to work either on his
own account or on behalf of any other person, business or company.
7. OTHER INTERESTS
Employee shall not (except with the prior written consent of the Board)
accept any appointment to any office in relation to any body, whether
corporate or not, or be directly or indirectly employed, engaged,
concerned or interested in any other business or undertaking, provided
that this shall not prohibit the holding (directly or
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through nominees) of investments listed on the London Stock Exchange or
in respect of which dealing takes place in the Alternative Investment
Market on the London Stock Exchange or any recognised stock exchange
provided that not more than 5 per cent of the issued shares or other
securities of any class of any one company shall be so held without the
prior sanction of a resolution of the Board. Employee shall immediately
notify Employer of any actual or potential conflict of interest with the
Employment including without limitation to the foregoing generality any
transaction or dealing which involves, or might involve, a relative of
Employee or any employee of such relative.
Subject to any regulations issued by Employer, Employee shall not be
entitled to receive or obtain directly or indirectly any discount, rebate
or commission in respect of any sale or purchase of goods effected or
other business transacted (whether or not by him) or by or on behalf of
Employer and if he (or any firm or company in which he is interested)
shall obtain any such discount, rebate or commission he shall account to
Employer for the amount received by him (or a due proportion of the
amount received by such company or firm having regard to the extent of
his interest therein).
8. HOURS AND PLACE OF WORK
Employee agrees that he shall work such hours as are necessary for the
proper performance of his duties, including any such hours which exceed
the maximum weekly working time limit of 48 hours imposed by the Working
Time Regulations 1998 or any re-enactment thereof. Employee shall work a
minimum of 37.5 hours per week from 9.30am to 6pm Monday to Friday, with
a break of one hour for lunch each day.
Employee's place of work will be based principally at Employer's offices
at Penicuik but Employer may require Employee to work at any place within
the United Kingdom or elsewhere on a temporary basis. Employer may only
change Employee's place of work on an indefinite basis subject to
Employee's consent. Employee will be given reasonable notice of any
change in his place of work. If Employee's principal place of work is
changed to a location which is outside reasonable commuting distance from
his home, the Employer will reimburse his reasonable removal costs,
estate agents' and solicitors' fees in accordance with its Relocation
Policy from time to time in force
Employee undertakes to use reasonable endeavours to relocate his
residence closer to Employer's offices, in which event the Employer will
reimburse his reasonable relocation costs but always subject to the
submission by the Employee of appropriate invoices, receipts and other
supporting documentation consistent with the Employer's reimbursement
policies and procedures.
9. REMUNERATION
Employee shall receive an annual salary during the Employment Term of
(pound)120,000 U.K. Pounds. Employee's salary shall be payable in
accordance with the Company's normal payroll process, currently monthly
in arrears on or around the 18th day of each month. Employee may also be
entitled to such fringe benefits, if any, that shall be made available to
Employee further described herein. The remuneration in this clause shall
be inclusive of any fees to which Employee may be entitled as a director
of Employer or any Group Company.
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10. FRINGE BENEFITS AND EXPENSES
A. EMPLOYEE PLANS
Employee shall be eligible during the continuance of Employment to
participate in such medical, hospitalisation, group health,
accident, disability and life insurance schemes and plans, such
pension, and such other employee benefit schemes to the same
extent such plans and schemes are made generally available from
time to time by Employer to all of its other similarly-situated
employees; provided, however, Employer shall be under no
obligation to make any of such plans or schemes available to its
employees or continue any which currently or in the future exist,
except as otherwise required by law. Entitlement to such benefits
is subject always to:
o the terms and conditions of the schemes or arrangements
from time to time;
o the insurer of the scheme or arrangement honouring
Employer's claim in respect of Employee or his spouse or
children; and
o Employee's acceptance of such variations to his terms and
conditions of employment as may from time to time be
requested by Employer.
All payments under the schemes or arrangements will be subject to
such deductions as may be required by law and also a sum
equivalent to any employer's National Insurance contributions
which are payable by Employer in respect of any payment under the
scheme or arrangements, as appropriate, and which are not
reimbursed by the insurer under the scheme or arrangement.
Where any payments are made under the permanent health insurance
scheme or arrangement all other benefits provided to or in respect
of Employee by the Employer will cease immediately (if they have
not done so already) except those benefits for which the Employer
receives reimbursement in full of the total cost to it of the
benefit from the insurer under the appropriate scheme or
arrangement.
B. CAR
During the continuance of the Employment, the Employer shall
provide to Employee for performance of Employee's duties on behalf
of Employer as specified herein a car, of a size and type
commensurate (in the opinion of the Board) with Employee's
position for the time being. Employer shall pay all petrol,
maintenance, insurance and other expenses related thereto.
Employee will be permitted to use the car for reasonable private
journeys. If Employee shall be convicted of any offence under the
Road Traffic Acts or is involved in any accident involving the
car, he shall forthwith notify the Board and supply such
information in connection therewith as the Board may request.
Employee shall at all times maintain a current full driving
licence and shall not do or omit to do anything which would or
might make void or prejudice any insurance policy maintained by
Employer.
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C. OTHER EXPENSES
Employer shall promptly pay directly or reimburse Employee for his
reasonable out-of-pocket costs and expenses incurred in connection
with the performance of his duties and responsibilities hereunder
including but not limited to reasonable travel, accommodation and
subsistence expenses incurred by Employee should the Employee be
temporarily required to carry out his duties elsewhere, in the UK
or abroad, than at his normal place of work but always subject to
the submission by Employee of appropriate invoices, receipts and
other supporting documentation, consistent with Employer's
customary reimbursement policies and procedures.
D. DEDUCTIONS
For the purposes of the Employment Rights Xxx 0000, sections
13-27, Employee hereby authorises the Employer to deduct from his
salary and/or any other sums due under this Agreement any sums due
from him to Employer including, without limitation, any
overpayments, loans or advances made to him by the Employer, and
any losses suffered by the Employer as a result of any negligence
or breach of duty by Employee.
11. HOLIDAY
Employer's holiday year runs from 1st January to 31st December. Employee
shall be entitled to annual holiday (of not less than 20 days). Holidays
may only be taken with advance permission from the Board. Employee may
not carry any unused holiday entitlement forward to a subsequent holiday
year. Holiday entitlement is accrued PRO RATA throughout the holiday
year, depending on Employee's length of service within that year. Accrued
holiday entitlement will be rounded up to the nearest whole day.
Upon notice of termination of Employee's employment being served by
either party, Employer may either require Employee to take any unused
holidays accrued at that time during any notice period or may, at its
discretion, make a payment in lieu of such holiday entitlement. Employee
will be required to make a payment to Employer in lieu of any holiday
taken in excess of Employee's holiday entitlement accrued at the date of
termination of the Employment. Any sums so due may be deducted from any
money owing to Employee.
12. SICKNESS
Without prejudice to the terms of clause 15, Employer shall continue to
pay Employee's salary during any period of absence on medical grounds for
up to a maximum period of 13 weeks in any period of 12 consecutive months
(such twelve month period beginning on the first day of absence),
provided that Employee shall from time to time if required:
o inform Employer without delay of any injury or incapacity;
o supply Employer with medical certificates covering any period of
sickness or incapacity exceeding seven consecutive days (including
weekends); and
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o undergo at Employer's expense a medical examination by a doctor
appointed by Employer.
Payment of Employee's salary pursuant to this clause 12 shall be made
less any amount of Statutory Sick Pay or other benefits to which Employee
may be entitled hereunder or under any relevant legislation.
Once entitlement to salary under this clause 12 lapses, Employee shall
have no right to any benefit or emolument from Employer except to any
permanent health insurance benefit which may be payable in accordance
with clause 10.
If Employee's absence shall be occasioned by the actionable negligence of
a third party in respect of which damages are recoverable, then all sums
paid by Employer during the period of absence in terms of this clause 12
shall constitute loans to Employee, who shall:
o forthwith notify Employer of all the relevant circumstances and of
any claim, compromise, settlement or judgement made or awarded in
connection therewith;
o if Employer so requires, refund to Employer such sum as Employer
may determine, not exceeding the lesser of:
(i) the amount of damages recovered by him in respect of loss
of earnings during the period of absence under any
compromise, settlement or judgement; and
(ii) the sums advanced to him by Employer in respect of the
period of incapacity.
13. FACILITIES
Employer shall provide and maintain (or cause to be provided and
maintained) such facilities, equipment, supplies and personnel as it
reasonably determines is adequate for Employee's performance of his
duties and responsibilities under this Agreement.
14. PENSIONS
Employer does not operate a pension scheme.
15. TERMINATION OF EMPLOYMENT
A INCAPACITY
For the purposes of this Agreement, Employee shall be deemed to be
"Incapacitated" when, by reason of physical or mental illness or
of injury, he is unable to perform substantially all of the duties
and responsibilities required of him in connection with his
employment hereunder. No incapacity shall be deemed to exist until
after Employee shall be unable to perform his duties hereunder for
ninety (90) consecutive days (the "Incapacity Period"). If
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Employee shall have been incapacitated but shall have returned to
work prior to the end of the Incapacity Period, any new incapacity
commencing within thirty (30) days of the termination of the prior
incapacity shall be a continuation of the prior incapacity, and
the period of all such disabilities shall be added together to
determine whether, or how much of, the Incapacity Period has
elapsed.
The Employment may be subject to termination by the Employer by
notice if Employee becomes Incapacitated provided that if at any
time during the currency of such notice Employee can provide a
medical certificate satisfactory to the Board and to the effect
that he has fully recovered his physical and/or mental health and
that no recurrence of illness or incapacity can reasonably be
anticipated, Employer shall withdraw the notice.
B. TERMINATION EVENTS
Notwithstanding any provisions of this Agreement to the contrary,
Employee's employment may be terminated by Employer with Cause (as
hereinafter defined) effective upon the delivery of written notice
to Employee. In addition, Employee's employment shall terminate
upon Employee reaching the Employer's normal retirement age of 65.
C. DEFINITION OF CAUSE
For purposes of this Agreement, "Cause" shall be: (a) conviction
for fraud or criminal conduct (other than conviction of, or a plea
of guilty to, a minor traffic offence), from which no appeal can
be taken; (b) habitual drunkenness or drug addiction; (c) fraud or
theft in respect of Employer; (d) material sanctions against
Employee in his capacity as an employee of Employer by regulatory
agencies governing Employer or against Employer because of
wrongful acts or conduct of Employee which have a material adverse
affect upon the Employer and its business; (e) material breach or
default by Employee of any of the material terms or conditions of
this Agreement, or the continuation of any breach or default by
Employee for a period of seven (7) days following the date of
receipt of written notice from Employer specifying the breach or
default of Employee; (f) the resignation of Employee prior to the
end of the Employment Term (in this last event, Employee's
employment shall be deemed terminated with Cause on the date that
he resigns); (g) disqualification as a director by reason of any
order made under the Company Directors Disqualification Act 1986
or any other enactment; (h) the bankruptcy or insolvency of
Employee; or (i) gross misconduct or negligence of Employee.
D. TERMINATION WITHOUT CAUSE
If Employee's employment is terminated by Employer without Cause
as defined in this Section, Employee shall be given sixty (60)
days written notice of termination by Employer and be entitled to
receive two years compensation and fringe benefits/expenses as
provided for in clause 9 & 10 hereof.
E. TERMINATION FOLLOWING A CHANGE OF CONTROL
(i) In the event that a "Change of Control", as
hereinafter defined, of Employer is followed by a
related "Good Reason" as hereinafter
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defined at any time during the Employment Term,
Employee shall have the right to terminate his
employment under this Agreement upon thirty (30)
days written notice given at any time within one
year after the occurrence of such events, and such
termination of Employee's employment with Employer
pursuant to this Subsection 15E then, in any such
event, such termination shall be deemed to be a
Termination by Employer Other than for Cause and
Employee shall be entitled to such Compensation and
Benefits as set forth in Subsection 15D of this
Agreement.
(ii) For purposes of this Agreement, a "Change of
Control" of Employer shall mean a change in the
legal person holding, directly or indirectly, the
shares which carry 50% or more of the voting rights
in either Employer or its holding company, for which
purpose "holding company" shall have the meaning
ascribed thereto by Section 736 of the Companies Xxx
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(iii) For the purposes of this Agreement, "Good Reason"
shall mean, without the Employee's express written
consent, the occurrence of any of the following
events after a Change in Control:
I. a reduction by the Employer of the Employee's basic rate of
remuneration (excluding any performance related or discretionary
bonuses);
II. the failure of the Employer to continue in effect any Employee
benefit plan or compensation plan in which the Employee was
participating following the Change in Control, unless the Employee
is permitted to participate in other plans providing substantially
comparable benefits, or the taking of any action by the Employer
which would adversely affect the Employee's participation in or
materially reduce benefits under any such plan, PROVIDED, HOWEVER,
that changes affecting the participation or benefits of all
similarly situated employees shall not be treated as Good Reason
hereunder;
III. a materially adverse change in the level of the Employee's
employment responsibilities, PROVIDED, HOWEVER, that changes in
title or changes in the Group Company which employs the Employee
shall not be treated as Good Reason hereunder; or
IV. a relocation of Employer's offices such that Employee would be
required to relocate his primary residence to provide for a
reasonable daily travel distance to such new location.
This Subsection 15E will not apply where the Employee gives Employer his
explicit written waiver stating that for the purposes of this Subsection
15E a Change in Control shall not be deemed to have occurred. The
Employee's participation in any negotiations or other matters in relation
to a Change in Control shall in no way constitute such a waiver which can
only be given by an explicit written waiver as provided in the preceding
sentence.
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F. TERMINATION PROVISIONS
If Employer becomes entitled to terminate the Employment pursuant
to this clause 15, it shall be entitled (but without prejudice to
its right subsequently to terminate the Employment on the same or
any other ground) to suspend Employee on full pay for so long as
it may think fit.
Employer reserves the right to give Employee pay in lieu of any
notice of termination (whether given by Employer or by Employee).
For this purpose, Employee agrees that pay in lieu of notice will
consist of his basic salary for the relevant period of notice and
any bonus/commission/share of profit and any other emolument
referable to the Employment. For the avoidance of doubt, the right
of Employer to make a payment in lieu of notice does not give rise
to any right of Employee to receive such a payment.
The giving of any period of notice of termination (whether given
by Employer or Employee), does not limit the Employer's right to
suspend any of Employee's duties and powers under clause 6 and
Employer shall be under no obligation to assign any duties to
Employee and shall be entitled to exclude him from its premises.
Throughout any such period of suspension, Employee shall continue
to receive his normal salary and other contractual benefits to
which he is entitled under this Agreement and shall not be
entitled to work either on his own account or for any other
person, company or business. Alternatively, Employer may, during
the whole or part of such period of notice, require Employee to
perform duties (including any modified duties arising from an
exercise by Employer of its rights under clause 6) at such
locations as the Company may require consistent with clause 8.
On the termination of the Employment or on either Employer or
Employee having served notice of such termination, Employee shall:
o at the request of Employer resign as a Director and/or from
any office held in Employer or any Group Company and shall
transfer without payment to Employer or as Employer may
direct, any shares or other securities held by Employee as
nominee or trustee for Employer or any Group Company
provided however that such resignation shall be without
prejudice to any claims which Employee may have against
Employer or any Group Company arising out of the
termination of the Employment; and
o forthwith deliver to Employer all materials within the
scope of clause 16 and all credit cards, cars, car keys and
other property of or relating to the business of Employer
or of any Group Company which may be in his possession or
under his power or control;
and if Employee should fail to do so Employer is hereby
irrevocably authorised to appoint some person in his name and on
his behalf to sign any documents and do any things necessary or
requisite to give effect thereto.
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16. NON-DISCLOSURE QF CONFIDENTIAL INFORMATION
A. CONFIDENTIAL INFORMATION
Employee acknowledges that Employee has been informed that it is
the policy of Employer to maintain as secret and confidential all
information relating to (i) the financial condition, businesses
and interests of Employer and its Group Companies, (ii) the
systems, know-how, products, services, costs, inventions, patents,
patent applications, formulae, research and development
procedures, notes and results, computer software programs,
marketing and sales techniques and/or programs, methods,
methodologies, manuals, lists and other trade secrets heretofore
or hereafter acquired, sold, developed and/or used by Employer and
its Group Companies and (iii) the nature and terms of Employer's
and its Group Companies' relationships with their respective
customers, clients, suppliers, lenders, vendors, consultants,
independent contractors and employees (all such information being
hereinafter collectively referred to as "Confidential
Information"), and Employee further acknowledges that such
Confidential Information is of great value to Employer and its
Group Companies and, in and by reason and as a result of
Employee's employment by Employer, Employee will be making use of,
acquiring and/or adding to such Confidential Information.
Therefore, Employee understands that it is reasonably necessary to
protect Employer's and its Group Companies' trade secrets, good
will and business interests that Employee agree and, accordingly,
Employee does hereby agree, that Employee will not directly or
indirectly (except where authorised by the Board for the benefit
of Employer and/or its Group Companies and/or as required in the
course of his employment) at any time hereafter use for his own
purposes or divulge or disclose for any purpose whatsoever to any
persons, firms, corporations or other entities other than Employer
or its Group Companies (hereinafter referred to collectively as
"Third Parties"), or use or cause or authorise any Third Parties
to use, or through any failure to exercise due care and diligence,
cause any unauthorised disclosure of any such Confidential
Information, except as otherwise required by law.
B. EMPLOYER'S MATERIALS
In accordance with the foregoing, Employee furthermore agrees
that:-
(i) Employee will at no time retain or remove from the premises
of Employer or its Group Companies any research and
development materials, drawings, notebooks, notes, reports,
formulae, software programs or discs or other containers of
software, manuals, data, books, records, materials or
documents of any kind or description for any purpose
unconnected with the strict performance of Employee's
duties with Employer; and
(ii) all such materials shall be and remain the property of the
Employer; and
(iii) upon the cessation or termination of Employee's employment
with Employer for any reason, Employee shall forthwith
deliver or cause to be delivered up to Employer any and all
research and development materials, drawings, notebooks,
notes, reports, formulae, software programs or discs
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or other containers of software, manuals, data, books,
records, materials and other documents and materials in
Employee's possession or under Employee's control relating
to any Confidential Information or any property or
information which is otherwise the property of Employer or
its Group Companies.
17. INVENTIONS AND OTHER INTELLECTUAL PROPERTY
The parties foresee that Employee may make inventions or create other
industrial or intellectual property in the course of his duties under
this Agreement and agree that in this respect Employee has a special
responsibility to further the interests of Employer and the Group
Companies.
Any discovery, development, invention, or improvement, design, process,
formula, method, database, information, computer program, copyright work,
semi conductor or other topography, copyright work, trade xxxx or trade
name or get-up made, created, devised, developed or discovered by
Employee during the continuance of the Employment (whether capable of
being patented or registered or not and whether or not made or discovered
in the course of the Employment) either alone or with any other person in
connection with or in anyway affecting or relating to the business of
Employer or any Group Company or capable of being used or adapted for use
therein or in connection therewith ("WORKS") shall forthwith be disclosed
to Employer and shall (subject to sections 39 to 43 Patents Act 1977)
belong to and be the absolute property of Employer or such Group Company
as Employer may direct.
Employee if and whenever required so to do by Employer shall at the
expense of Employer or such Group Company as Employer may direct:
o apply or join with Employer or such Group Company in applying for
letters patent, registered design, design right, trade xxxx or
other protection or registration in the United Kingdom and in any
other part of the world for any Works; and
o execute all instruments and do all things necessary for vesting
such works or patents, registered designs, design rights, trade
marks or other protection or registration when obtained and all
right, title and interest to and in the same absolutely and as
sole beneficial owner in Employer or such Group Company or in such
other person as Employer may specify; and
o sign and execute all such documents and do all such acts as the
Company may reasonably require in connection with any proceedings
in respect of such applications and any publication or application
for revocation of such patents, registered designs, design rights,
trade marks or other protection.
Employee hereby irrevocably and unconditionally waives all rights under
Chapter IV Copyright, Designs and Patents Xxx 0000 and any other moral
rights which he may have in the Works or in connection with the
authorship of any existing or future copyright work in the course of the
Employment, in whatever part of the world such rights may be enforceable
including, without limitation:
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o the right conferred by section 77 of that Act to be identified as
the author of any such work; and
o the right conferred by section 80 of that Act not to have any such
work subjected to derogatory treatment.
Employee hereby irrevocably appoints Employer to be his Attorney in his
name and on his behalf to execute any such act and to sign all deeds and
documents and generally to use his name for the purpose of giving to
Employer the full benefit of this clause. Employee agrees that with
respect to any third parties a certificate signed by any duly authorised
officer of Employer that any act or deed or document falls within the
authority hereby conferred shall be conclusive evidence that this is the
case.
Nothing in this clause shall be construed as restricting the rights of
Employee or Employee under sections 39 to 43 Patents Xxx 0000.
18. COVENANT - NOT-TO-COMPETE
A. DEFINITIONS
For the purposes of clause 18B the following words have the following
meanings:
"COMPANY GOODS" means any product researched into, developed,
manufactured, distributed or sold by Employer with which the Employee was
materially concerned or for which he was responsible during the two years
immediately preceding the Termination Date;
"COMPANY SERVICES" means any services (including but not limited to
technical and product support, technical advice and customer services)
supplied by Employer with which the duties of Employee were materially
concerned or for which he was responsible during the two years
immediately preceding the Termination Date;
"CONFIDENTIAL INFORMATION" has the meaning given to it in clause 16;
"CUSTOMER" means any person, firm, company or other organisation
whatsoever to whom or which Employer distributed, sold or supplied
Company Goods or Company Services during the two years immediately
preceding the Termination Date and with whom or which, during such
period:
(i) Employee had material dealings in the course of his
employment; or
(ii) any employee who was under the direct or indirect
supervision of Employee had material dealings in the course
of his employment;
but in the case of a firm, company or other organisation shall not
include any division, branch or office of such firm, company or other
organisation with which Employee and/or any such employee had no dealings
during the said period;
"INVESTOR" means any person, firm, company or other organisation
whatsoever which has invested in the Employer or any Group Company during
the two years
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immediately preceding the Termination Date and with whom or which, during
such period, Employee had dealings in the course of his employment
regarding such investment;
"PROSPECTIVE CUSTOMER" means any person, firm, company or other
organisation whatsoever with whom or which Employer shall have had
negotiations or discussions regarding the possible distribution, sale or
supply of Company Goods or Company Services during the 12 months
immediately preceding the Termination Date and with whom or which, during
such period:
(i) Employee shall have had material dealings in the course of
his employment by Employer; or
(ii) any employee who was under the direct or indirect
supervision of Employee shall have had material dealings in
the course of his employment by the Company;
but in the case of a firm, company or other organisation shall not
include any division, branch or office of such firm, company or other
organisation with which Employee and/or any such employee had no dealings
during the said period;
"RESTRICTED AREA" means:
(i) Scotland and;
(ii) as Employee and Employer acknowledge the Employer's
intention is to compete in a worldwide market, any other
country in the world where, on the Termination Date,
Employer was engaged in the research into, development,
manufacture, distribution, sale or supply or otherwise
dealt with Company Goods or Company Services or any other
country in the world where Employer during the 12 months
immediately preceding the Termination Date shall have had
negotiations or discussions regarding the possible research
into development, manufacture, distribution sale or supply
or other dealings with Company Goods or Company Services;
"RESTRICTED GOODS" means any product of the same type or materially
similar to Company Goods;
"RESTRICTED SERVICES" means any services of the same type or materially
similar to Company Services;
"RESTRICTED PERIOD" means the period of 24 months immediately following
the Termination Date;
"SENIOR EMPLOYEE" means an employee of the Company who in the opinion of
the Company is a key employee to the Company and who earns a salary of at
least (pound)20,000 per annum at the Termination Date;
"TERMINATION DATE" means the date of termination of the Employment.
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B. RESTRICTIONS
Employee hereby undertakes with Employer that he will not either during
the Employment nor during the Restricted Period without the prior written
consent of Employer whether by himself, through his employees or agents
or otherwise howsoever and whether on his own behalf or on behalf of any
other person, firm, company or other organisation, directly or
indirectly:
(i) in competition with Employer within the Restricted Area, be
employed or engaged or otherwise interested in the business of
researching into, developing, manufacturing, distributing,
selling, supplying or otherwise dealing with Restricted Goods or
Restricted Services;
(ii) in competition with Employer, in respect of Restricted Goods or
Restricted Services, solicit business from or canvass any
Customer, Prospective Customer;
(iii) in competition with Employer, in respect of Restricted Goods or
Restricted Services, accept orders from, or have any business
dealings with, any Customer or Prospective Customer;
(iv) solicit or induce or endeavor to solicit or induce any person who,
on the Termination Date, was a Senior Employee of Employer with
whom Employee had dealings during the last 12 months of the
Employment to cease working for or providing services to Employer,
whether or not any such person would thereby commit a breach of
contract;
(v) employ or otherwise engage in the business of researching into,
developing, manufacturing, distributing, selling, supplying or
otherwise dealing with Restricted Goods or Restricted Services any
person who, during the 12 months preceding the Termination Date,
was employed or otherwise engaged by Employer and who by reason of
such employment or engagement is in possession of any trade
secrets or Confidential Information relating to the business of
Employer or who has acquired influence over its Customers and
Prospective Customers (defined in clause 18A, but so that
references to Employee shall be replaced by references to the
relevant employee);
(vi) in competition with Employer seek funding or investment from an
Investor.
C. LIMITATION OF SUSPENSION
If Employer exercises its right to suspend Employee's duties and powers
under clause 6 during any period after notice of termination of the
Employment has been given by Employer or Employee, the aggregate of the
period of the suspension and the period after the Termination Date for
the which the covenants in sub-clause 18B shall apply shall not exceed 12
months and, if the aggregate of the two periods would exceed 12 months,
the period after the Termination Date for which the covenants in
sub-clause 18B shall apply shall be reduced accordingly.
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D. GROUP COMPANIES
Clause 18B shall also apply as though references to "Employer" include
references to each Group Company in relation to which Employee has in the
course of his duties for Employer or by reason of rendering services to
or holding office in such Group Company:
(i) acquired knowledge of its trade secrets or Confidential
Information; or
(ii) had personal dealings with its Customers or Prospective Customers;
or
(iii) supervised directly or indirectly employees having personal
dealings with its Customers or Prospective Customers,
but so that references in clause 18A to "Employer" shall for this purpose
be deemed to be references to the relevant Group Company. The obligations
undertaken by Employee pursuant to this clause 18D shall, with respect to
each such Group Company, constitute a separate and distinct covenant and
the invalidity or unenforceability of any such covenant shall not affect
the validity or enforceability of the covenants in favour of any other
Group Company or Employer.
E. ASSOCIATION
Employee hereby undertakes with Employer that he will not at any time:
(i) during the continuance of the Employment or after the Termination
Date engage in any trade or business or be associated with any
other person, firm or company engaged in any trade or business
using the name(s) Viragen or incorporating the word(s) Viragen;
(ii) after the termination of the Employment in the course of carrying
on any trade or business, claim, represent or otherwise indicate
any present association with Employer or any Group Company or for
the purpose of carrying on or retaining any business or custom,
claim, represent or otherwise indicate any past association with
Employer or any Group Company to its detriment.
F. SEVERABILITY
The restrictions in this clause 18 (on which Employee has had the
opportunity to take independent advice, as Employee hereby acknowledges)
are separate and severable restrictions and are considered by the parties
to be reasonable in all the circumstances. It is agreed that if any such
restrictions, by themselves, or taken together, shall be adjudged to go
beyond what is reasonable in all the circumstances for the protection of
the legitimate interests of Employer or a Group Company but would be
adjudged reasonable if part or parts of the wording thereof were deleted,
the relevant restriction or restrictions shall apply with such
deletion(s) as may be necessary to make it or them valid and effective.
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19. EMPLOYEE'S DISCLOSURES AND REPRESENTATIONS AND WARRANTIES
Employee hereby acknowledges, represents and warrants to, and/or agrees
with, Employer as follows:
(a) That Employee has full right, power and authority to perform all
obligations under this Agreement.
(b) Employee hereby agrees to indemnify and hold harmless Employer and
its shareholders, directors, officers, employees and agents from
and against any and all loss, damage, liability, cost or expense
(including reasonable legal fees and costs due to or arising out
of any material inaccuracy in, or material breach of, any material
representation, warranty or covenant of Employee contained herein.
20. INDEPENDENT ADVICE
Employer and Employee agree that each of them have been, or were advised
and fully understand that they are entitled to be represented by
independent legal representation with respect to all matters contemplated
herein from the commencement of negotiations at all times through to the
execution hereof.
21. LAW APPLICABLE
This Agreement shall be governed by and construed in accordance with the
law of Scotland.
22. NOTICES
Any notice or other document to be given under this Agreement shall be in
writing and may be given personally to Employee or to the Secretary of
Employer (as the case may be) or may be sent by first class post or other
fast postal service or by facsimile transmission to, in the case of
Employer, its registered office for the time being and in the case of
Employee either to his address shown on the face hereof or to his last
known place of residence.
Any such notice shall be deemed served when in the ordinary course of the
means of transmission it would first be received by the addressee in
normal business hours.
23. COLLECTIVE AGREEMENTS
There are no collective agreements applicable to the Employment.
24. DATA PROTECTION
Employee acknowledges and agrees that Employer is permitted to hold
personal information about Employee as part of its personnel and other
business records and may use such information in the course of Employee's
business. Employee agrees that Employer may disclose such information to
third parties in the event that such disclosure is in Employer's view
required for the proper conduct of Employer's
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business or that of any Group Company. This clause applies to information
held used or disclosed in any medium.
25. SUCCESSION
This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective successors in interest of any kind
whatsoever; provided, however, that Employee acknowledges and agrees that
he cannot assign, delegate or transfer any of his rights, duties,
responsibilities or obligations hereunder to any other person or entity.
26. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties with
respect to, and supersedes any and all prior agreements, both oral and
written, between the parties hereto, except as related to rights of the
Employee and his statutory waiver of claims on expiry of this contract.
This Agreement can only be amended in writing.
27. NO WAIVER
A waiver of any breach of any term, provision or covenant contained
herein shall not be deemed a continuing waiver or a waiver of any future
or past breach. No oral waiver shall be binding.
28. INDEMNITY OF EMPLOYEE
Employer shall indemnify and hold harmless Employee from and against any
and all claims, judgments, fines, penalties, liabilities, losses, costs
and expenses (including reasonable legal fees and costs) asserted against
or incurred by Employee as a result of acts or omissions of Employee
taken or made in the course of performing his duties for Employer or by
reason of Employee acting or having acted as a director or officer of
Employer, to the maximum extent permitted by law, (including the
advancement of expense provisions thereof); provided, however, that such
indemnity shall not apply to acts or omissions of Employee which
constitute misconduct, gross negligence or which were intended by
Employee to personally benefit Employee, directly or indirectly, at the
expense of Employer, unless the matter which benefits Employee was first
fully disclosed to the Board of Directors of Employer and approved by
said Board.
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29. GRIEVANCE PROCEDURE
If Employee wishes to obtain redress of any grievance relating to his
employment or is dissatisfied with any reprimand, suspension or other
disciplinary step taken by the Employer, he shall apply in writing to the
Chairman of the Board, setting out the nature and details of any such
grievance or dissatisfaction.
IN WITNESS WHEREOF, these presents printed on this and the 17 preceding pages
are executed as follows:-
Signed for and on behalf of the said Viragen
(Scotland) Limited
At Plantation, Florida, USA
On 18 May,
Two Thousand and One:-
Witness Xxxxxx X. Xxxxxx /s/ Xxxxxx Xxxxx
----------------------------- ---------------------------------------
Xxxxxx Xxxxx
Address Chairman & CEO
------------------------------
------------------------------
Occupation Executive Vice President/CFO
Signed by the said Xx. Xxxxxx Xxxxxx Nicolson
At Plantation, Florida, USA
On 18 May,
Two Thousand and One:-
Witness Xxxx X Xxxxxx /s/ Xxxxxx Xxxxxx Nicolson
----------------------------- ---------------------------------------
Xx. Xxxxxxxx
Address
------------------------------
------------------------------
Occupation Controller
---------------------------
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SCHEDULE
The following constitutes the statement of the particulars of employment of
Employee issued pursuant to the Employment Rights Xxx 0000. The particulars are
those which apply on the date of this Agreement.
NAME OF EMPLOYER - the Company as defined on page 1 above.
NAME OF EMPLOYEE - the Employee as defined on page 1 above.
DATE OF COMMENCEMENT OF CONTINUOUS PERIOD OF EMPLOYMENT - see clause 4
SCALE OR RATE OF REMUNERATION OR METHOD OF CALCULATING REMUNERATION -
see clause 9
INTERVALS AT WHICH REMUNERATION IS PAID - monthly - see clause 9
HOURS OF WORK - see clause 8
HOLIDAYS (INCLUDING PUBLIC HOLIDAYS) AND HOLIDAY PAY - see clause 11
SICKNESS OR INJURY AND SICK PAY - see clause 12
PENSION - see clause 14
NOTICE - see clause 3 and 15
JOB TITLE - see clause 6
PLACE OF WORK - see clause 8. The Employer's address is as stated on page 1.
COLLECTIVE AGREEMENTS - Employer is not a party to any collective agreements
which affect Employee's employment.
WORKING OVERSEAS - Employee is not under any obligation to work overseas for
period exceeding one month and accordingly there are no particulars to be
entered in this regard.
DISCIPLINARY AND GRIEVANCE PROCEDURES - see Employer's Disciplinary Procedure.
Grievance provisions - see clause 29.
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