Conditional upon completion of
the cash subscription, placing
and open offer to be made by
Huntingdon Life Sciences Group Plc
in August/September 1998
DATED 7th August 0000
XXXXXXXXXX LIFE SCIENCES
GROUP PLC
- and -
FHP HOLDINGS LIMITED
-------------------------------------
MANAGEMENT SERVICES AGREEMENT
-------------------------------------
Xxxxxxx Xxxxxxx
0-00 Xxx Xxxxxx Xxxx
Xxxxxx
XX0X 0XX
Ref: DJSG/GXW/25407/3
Tel: 0000 000 0000
THIS AGREEMENT is made on 1998
BETWEEN:
(1) HUNTINGDON LIFE SCIENCES GROUP PLC whose registered office is at
Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxxx XX00 0XX (the
"Company"); and
(2) FHP HOLDINGS LIMITED of First Floor, Euro Canadian Centre, Marlborough
Street, Nassau, Bahamas (the "Consultant").
IT IS AGREED as follows:
A. The Consultant is engaged in business offering consultancy services in
relation to healthcare ancillary services and has considerable skill,
knowledge and experience in that field.
B. In reliance upon that skill, knowledge and experience, the Company
wishes to engage the Consultant to provide the services of the
Executive in relation to the Business (as such terms are defined below)
on the terms set out in this agreement.
1. DEFINITIONS AND INTERPRETATION
(1) In this agreement unless the context otherwise requires the following
expressions shall have the following meanings:
"Associated Company" means:
(a) a company which is not a
Subsidiary of the Company
but whose issued equity
share capital (as defined
in s744 of the Companies
Act 1985) is owned as to at
least 20% by the Company or
one of its Subsidiaries;
and
(b) a Subsidiary (as defined below)
"Board" the board of directors for the time being of
the Company;
"Business" the provision of pre-clinical, early
clinical and non-clinical biological safety
evaluation services to the pharmaceutical,
biotechnology, agrochemical and other chemical
industries;
"Commencement Date" 1998
"Executive" Xxxxxx Xxxxx
"Group" means the Company and its subsidiaries and
Associated Companies for the time being and
"Group Company" means any one of them;
"Intellectual Property" all inventions (whether
patentable or not) patents, utility
models, designs (both registered or
unregistered), copyright, database
right, trade and service marks (both
registered and unregistered)
together with all rights to the
grant of and applications for the
same and including all similar or
analogous rights throughout the
world and all future rights of such
nature;
"Services" means including but not limited to,
the planning and development for the
benefit of the Company and the Group
of (a) a future business strategy,
(b) shareholder and business
relations, (c) business
opportunities, (d) a financing
strategy, (e) the co-ordination and
overview of the Group's operating
management team together with all
normal duties of a reasonable
executive director who is chairman
of a listed public limited company;
"Subsidiary" means a Subsidiary within the meaning of s736
of the Companies Xxx 0000;
"Working Day" means a day other than a Saturday, Sunday or
bank or other public holiday in England.
(2) Any reference to a statutory provision shall be deemed to include a
reference to any statutory modification or re-enactment of it.
(3) The headings in this agreement are for convenience only and shall not
affect its construction or interpretation.
(4) References in this agreement to a person include a body corporate and
an incorporated association of persons and references to a company
include any body corporate.
2. TERM
(1) This agreement shall commence with effect from the Commencement Date
and shall continue unless and until terminated by either the Company or
the Consultant giving to the other not less than 12 months notice in
writing, at any time, subject to earlier termination as provided below.
3. SERVICES
(1) With effect from the Commencement Date, the Consultant shall provide
the Services to the Company and the Group and such other services
consistent with the Services as the Company may reasonably require of
the Consultant from time to time.
(2) The Consultant shall provide the Services through the Executive.
(3) The Consultant shall procure that the Executive will make
himself available to the Company for a minimum of 100 (one
hundred) days per year and at such locations and times as may be
agreed between the Company and the Executive.
(4) The Consultant shall procure that the Executive will:
o comply with all reasonable directions from time to time given
to him in connection with the provision of the Services and
shall keep the Company and the Board regularly informed and
shall give to the Company and the Board such information
regarding the provision of the Services as the Company and/or
the Board may reasonably require;
o comply (and procure that his spouse and minor children comply)
with all applicable rules and regulations of the London Stock
Exchange, the New York Stock Exchange, the US Securities
Exchange Commission and any codes of conduct of the Group for
the time being in force and of any other relevant regulatory
authority.
o not directly or indirectly during the currency of this
agreement be employed by or perform any services for or be
interested in any manner in any other business which is or may
be competitive with the Company or the Group except with the
consent in writing of the Company or as holder or beneficial
owner (for investment purposes only) of any class of
securities in a company if those securities are listed or
dealt in on a recognised investment exchange (as defined by
section 207 (1) Finance Services Act 1986) and where the
Consultant and the Executive (together with the Executive's
spouse, children, parents and parents' issue) together neither
hold nor are beneficially interested in more than five per
cent of that class.
o keep the Company reasonably informed of his whereabouts and
telephone number or other means by which the Executive can be
contacted easily at short notice.
(5) The Consultant will ensure that the Executive completes and will be
responsible for completing the Services including returning all
drawings, designs, plans, documents, paper, models, materials, disks or
any other property, in whatever format, belonging to the Company, the
Group and/or clients of the Company or the Group. The Consultant will
also provide all details and complete all documentation and procure
that the Executive provides all details and completes all documentation
which may be necessary to comply with clause 8 below.
4. DUTIES OF THE CONSULTANT
(1) The Consultant shall procure that the Executive will:
o perform the Services with due diligence and in a safe and
competent manner and acquaint himself with and comply with any
working practice's rules or procedures applicable to others
(whether independent contractors or employees of the Company
or of the Group) at any location where the Executive is
performing the Services (whether or not at the Company's
premises);
o act in and use his best endeavours to protect and promote the
interests of the Company and, where consistent with them, the
Group, in accordance with the general policy and directions of
the Company;
o provide the full benefit of his knowledge, expertise and skill
in connection with the provision of the Services and devote
his full time, attention and abilities to the Company and the
Group at such times as the Executive is required to provide
the Services pursuant to clause 2(3).
5. FEE
(1) The Company shall pay a fee to the Consultant at a rate of
(pound)150,000 per annum (plus VAT if appropriate) upon production of a
valid invoice in accordance with clause 5(2) below (the "Fee") .
(2) The Consultant shall invoice the Company on the last day of each
calendar month for the Fee incurred in respect of that month. The
Company shall pay the invoice within 30 days of receipt.
6. EXPENSES
(1) The Company shall, in addition to payment of the fee, reimburse the
Consultant, on production of such vouchers or other evidence as the
Company may reasonably require, any reasonable travelling, other
expenses which are reasonably and properly incurred by the Executive in
the course of providing the Services.
(2) The amount of any expenses shall be included by the Consultant in
its invoices submitted at the end of each month and the Company
shall reimburse the Consultant within 30 days of receipt of the invoice.
7. CONFIDENTIAL INFORMATION
(1) The Consultant undertakes to the Company that throughout the period of
and after the termination of this agreement it shall treat as secret
and confidential and shall procure that the Executive shall treat as
secret and confidential any information which may be received by the
Consultant, all work performed by the Executive in the course of
providing the Services which comes to the knowledge of the Consultant
and/or the Executive in the course of or in connection with the
provision of the Services (the "Information").
(2) The Consultant also undertakes, and shall procure that the Executive
shall, not at any time nor for any reason disclose or permit to be
disclosed to any person or otherwise make use of or permit to be made
use of the Information other than for the purpose of providing the
Services to the Company and/or the Group.
(3) The restrictions contained in clauses 7(1) and 7(2) above shall cease
to apply to any Information which:
(a) may come into the public domain otherwise than by breach of
the Consultant or the Executive of the obligations set
out in this clause; or
(b) is disclosed to the Consultant or the Executive by a third
party who has not received it either directly or indirectly
from the Company; or
(c) must be disclosed by any applicable law, to the extent of
such required disclosure.
(4) In respect of Information divulged to the Consultant or the Executive
in the course of or for the purpose of performing services on behalf of
the Company or the Group for third parties, the Consultant shall comply
and shall procure that the Executive shall comply with the terms of all
undertakings given by the Company to such third parties as if such
undertaking were made by the Consultant and the Executive. The Company
shall give to the Consultant a copy of each such undertaking, which
shall be signed by the Company and the Consultant for the purpose of
identification.
8. INTELLECTUAL PROPERTY
(1) In consideration of the payment of one pound ((pound)1) receipt of
which the Consultant hereby acknowledges:-
(a) If the Consultant or the Executive makes or participates in
making any invention or any design (whether registerable or
not) or any work in which copyright and/or design right
subsists, in connection with the provision of the Services,
and which relates to or is useful in connection with the
Business and/or the business of the Group, the Consultant
shall disclose such invention, design or work to the Company
immediately. In the case of such an invention the Consultant
shall give the Company full particulars of the invention
together with all information, data (in all forms and in all
media) drawings and models embodying or relating to the
invention and in the case of designs and copyright works, a
copy of all such designs and works.
(b) All rights in Intellectual Property which may be created by
each of the Consultant and the Executive in the course of
providing the Services shall be the sole and exclusive
property of the Company and the Consultant hereby assigns and
shall procure that the Executive shall assign all such
Intellectual Property to the Company by way of present and
future assignment with full title guarantee.
(c) In the case of registerable rights the Consultant shall if
requested by the Company execute and shall procure that the
Executive executes all documents and do all things which may
be necessary or desirable for obtaining the best possible
registerable protection in territories specified by the
Company, and in respect of all Intellectual Property the
Consultant shall execute and shall procure that the Executive
executes all documents and do all such things as may be
necessary or desirable for perfecting assignment of
Intellectual Property under clause 8(2) above.
(d) The Consultant hereby irrevocably appoints the Company to be
its attorney in its name and on its behalf to sign, execute
any instrument or do anything and generally to use its name
for the purpose of giving to the Company and/or the Group the
full benefit of the provisions of this clause and in favour of
any third party a certificate in writing signed by any
director or the secretary of the Company that any instrument
or act falls within the authority conferred by this clause
shall be conclusive evidence that such is the case.
9. TERMINATION
(1) Without prejudice to any remedy it may have against the Consultant for
breach or non-performance of any provision of this agreement the
Company may by written notice to the Consultant terminate this
agreement with immediate effect if:
(a) the Consultant or the Executive is in material breach of any
of the terms of this agreement;
(b) the Consultant is in breach of clause 3(2) of this agreement
being at any time unable to provide the services of the
Executive, provided that if the Executive is incapacitated by
reason of sickness or injury the Company shall not terminate
this agreement until the Executive has been so incapacitated
for a continuous period of 26 weeks;
(c) the Consultant or the Executive is guilty of serious
misconduct or wilful and persistent neglect of their
respective obligations under this agreement;
(d) any order shall be made or effective resolution passed for
liquidation, winding up or dissolution of the Consultant
(otherwise than for the purpose of reconstruction or
amalgamation on terms approved by the Company);
(e) the Executive becomes bankrupt or makes any composition or
enters into any deed of arrangement with his creditors in
circumstances which would have a material adverse effect on
the Company, the Group or their respective reputations;
(f) the Executive is convicted of any arrestable criminal offence
(other than an offence under road traffic legislation in the
United Kingdom or elsewhere for which a fine or non-custodial
penalty is imposed) in circumstances which would have a
material adverse effect on the Company, the Group or their
respective reputations;
(g) the Executive is convicted of an offence under the Companies
Securities (Insider Dealing) Xxx 0000 or under any other
present or future statutory enactment or regulations relating
to insider dealings under English or New York law;
(h) the Executive ceases to be employed by or to have a
substantial interest in the Consultant;
(i) the Executive and/or the Consultant, in the reasonable opinion
of the Company, act in such a way as to seriously jeopardise
the business of the Company and/or the Group.
(2) Upon termination of this agreement for whatever reason the Consultant
shall deliver and shall procure that the Executive delivers to the
Company all books, documents, papers, materials and other property (in
whatever format) relating to the Business, and/or the business of the
Group or the clients of the Company or the Group which may then be in
its or the Executive's possession or under its or his power or control.
(3) The Company may at any time and in its absolute discretion (whether or
not any notice of termination has been given by the Company or the
Consultant under clause 2(1) above) terminate this agreement with
immediate effect by making a payment in lieu of notice.
10. POST-TERMINATION RESTRICTIONS
(1) Definitions
In this clause:
(a) "Termination Date" means the date on which the employment
terminates;
(b) "Person" includes any company, firm, organisation or other
entity;
(c) "Area" means any country in the world where on the
Termination Date the Company was supplying services;
(d) "Business" means any business carried on by the Company or any
Group Company which relates to the provision of pre-clinical,
early clinical and/or non-clinical biological safety
evaluation services to the pharmaceutical and biotechnology,
agrochemical and other chemical industries;
(e) "Client" means any Person to whom the Company or a Group
Company supplied during the 6 months preceding the Termination
Date and with whom at any time during such period the
Consultant was actively involved;
(f) "Prospective Client" means any Person with whom the Company or
a Group Company had negotiations or discussions regarding the
possible supply of services during the 6 months immediately
preceding the Termination Date and with whom at any time
during such period the Consultant was actively involved.
(2) The Consultant covenants with the Company that it shall not at any time
during the continuance of this agreement or for a period of 6 months
after the termination of it solicit or endeavour to solicit whether
directly or indirectly any senior employee of the Company or a Group
Company to leave and with whom at any time during the period of 6
months prior to such termination the Consultant was actively involved
(whether in breach of the terms of their contract or not).
(3) The Consultant covenants with the Company that it shall not for a
period of six months from the Termination Date in the Area:
(a) canvass or solicit business for services similar to those
being provided by the Company or a Group Company as at the
Termination Date from any Client or Prospective Client;
(b) seek to do business or deal with any Client or Prospective
Client in respect of services similar to those being provided
by the Company or a Group Company as at the Termination Date;
or
(c) canvass or solicit business from any supplier of the Company
or a Group Company with whom the Consultant was actively
involved during the 6 months ending on the Termination Date or
persuade such supplier to cease to supply, or to restrict or
vary the terms of supply to the Company or a Group Company or
otherwise interfere with the relationship between such a
supplier and the Company or a Group Company.
(4) The Consultant shall not for a period of 6 months from the termination
of this agreement directly or indirectly be interested or concerned in
any business which is carried on in the Area and which is competitive
or likely to be competitive with the Business being carried on at the
Termination Date and with which the Consultant was actively involved
during the 6 month period ending on the Termination Date.
For this purpose, the Consultant is concerned in a business if:
(a) he carries it on as principal or agent; or
(b) he is a partner, director, employee, secondee, consultant or
agent in, of or to any Person who carries on the business; or
(c) he has any direct or indirect financial interest (as
shareholder or otherwise) in any Person who carries on the
business.
11. NO EMPLOYMENT OR PARTNERSHIP
(1) Nothing contained in this agreement shall be construed or have effect
as constituting any relationship of employer and employee or partners
or any other fiduciary relationship between the Company and the
Consultant or between the Company and the Executive.
(2) The Consultant shall be responsible for the payment of any remuneration
payable to and benefits provided for the Executive under his contract
of employment or otherwise including any National Insurance, income tax
and any other form of taxation or social security cost in respect of
his remuneration or benefits. The Consultant shall indemnify the
Company and/or any Group Company in respect of any such payment,
including any interest or penalties imposed on the Company or the Group
in respect of any payments made to the Company under this agreement.
12. WARRANTIES
The Consultant warrants to the Company that:
(a) the Consultant employs the Executive and has available to it
the exclusive use of his services; and
(b) the provision of the Services shall not:-
(i) infringe the Intellectual Property of any third party; or
(ii) involve the use of information in breach of obligations
owed to or rights held by any third party; and
(c) the Company will not infringe the Intellectual Property of any
third party by the Company exercising all of the rights of the
owner of the Intellectual Property assigned by the Consultant
to the Company under this agreement; and
(d) Neither the Consultant nor the Executive is bound by any
legally enforceable obligations owed to persons other than the
Company which would prevent either the Consultant or the
Executive from complying with the terms of this agreement.
13. SEVERABILITY
If any of the provisions of this agreement become invalid or
unenforceable for any reason by virtue of applicable law the remaining
provisions shall continue in full force and effect and the Company and
the Executive hereby undertake to use all reasonable endeavours to
replace any legally invalid or unenforceable provision with a provision
which will promise to the parties (as far as practicable) the same
commercial results as well intended or contemplated by the original
provision.
14. PREVIOUS AGREEMENTS
With effect from the Commencement Date, all other agreements and
arrangements between the Consultant or the Executive and the Company
relating to the provision of Services by the Consultant or the
Executive shall cease to have effect.
15. GRATUITIES
The Consultant shall not, and shall procure that the Executive shall
not, directly or indirectly accept any commission, discount, gratuity
or other benefit from any person who has or is likely to have a
business relationship with the Company and/or the Group.
16. GOVERNING LAW
(1) This agreement shall be governed by and construed in accordance with English
law.
(2) The parties agree that the courts of England are to have exclusive
jurisdiction to settle any dispute which may arise out of or in
connection with this agreement and submit to the jurisdiction of those
courts.
17. NOTICES
(1) Any notice or other document to be served under this agreement
may be delivered or sent by first class post or telex or
facsimile process to the party to be served at its registered office
for the time being.
(2) Unless the contrary is proved, any such notice or other document shall
be deemed to have been served:
(a) if delivered, at the time of delivery;
(b) if posted, at 10.00am on the second Working Day after it was
put into the post; or
(c) if sent by telex or facsimile process, at the expiration of
two hours after the time of despatch, if despatched before
3.00pm on any Working Day, and in any other case at 10.00am on
the Working Day following the date of despatch.
(3) In proving such service it shall be sufficient to prove that delivery
was made or that the envelope containing such notice or other document
was properly addressed and posted as a pre-paid first class letter or
that the telex or facsimile message was properly addressed and
despatched as the case may be.
AS WITNESS the hands of the duly authorised representatives of the Company and
of the Consultant on the date first mentioned on page one.
SIGNED by XXXXXXXXXXX XXXXXX on behalf of HUNTINGDON )
LIFE SCIENCES GROUP PLC )
in the presence of:- )
)
)
SIGNED by XXX XXXXXXXXXX )
on behalf of FHP HOLDINGS )
LIMITED in the presence of:- )
