At the Annual General Meeting of shareholders held on September 24, 2008, Shire made this service agreement available for review.
Exhibit 10.23
At the Annual General Meeting of
shareholders held on September 24, 2008, Shire made this service agreement
available for review.
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Dated 2 July
2008
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| (1) SHIRE LIMITED | ||
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- and -
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| (2) ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ | ||
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THIS
AGREEMENT is
made the 2 day of July 2008
B
E T W E E N:
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(1)
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SHIRE
LIMITED (registered number
99854) a company incorporated in and under the laws of Jersey and having
its registered office at ▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the "Company");
and
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(2)
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▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ of ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ (the
"Executive").
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WHEREBY it is agreed that the Company shall
employ the Executive and the Executive shall serve the Company as Chief
Financial Officer on the following terms and subject to the following
conditions.
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1.
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Commencement
and Term
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1.1
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The
Executive's continuous employment with the Company shall commence on 1
July 2008.
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1.2
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The employment
of the Executive shall (subject to the provisions of Clause 15) be
terminable by either the Company or the Executive giving to the other 12
(twelve) months' notice in writing commencing at any
time.
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1.3.1
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The Company
may at its absolute discretion elect at any time to terminate the
employment of the Executive with immediate effect by paying to the
Executive (less deductions as appropriate) salary in lieu of notice and a
sum (which shall be calculated by multiplying the Relevant Amount by the
number of months' notice which the Executive was entitled to receive at
the date of such termination) in compensation for the immediate loss by
the Executive of his other benefits hereunder.
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1.3.2
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In the event
that the Company terminates the employment of the Executive pursuant to
Clause 1.3.1 at any time, the Relevant Amount shall be the aggregate
of;
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| (a) |
an amount, to
be decided at the absolute discretion of the Remuneration Committee, which
may be up to the target annual bonus under the Executive Annual Incentive
Plan (EAIP) to which, had he served his notice, the Executive would have
been entitled pursuant to Clause 4 based on 100% achievement of group and
personal objectives for the bonus year in which his employment terminates
(based on the Executive's salary at the date on which his employment
terminates), divided by 12 (twelve);
and
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| (b) | (i) |
25% of the
Executive's basic salary (taken at the date of termination of this
Agreement) in lieu of Company contributions to the Executive's pension
scheme pursuant to Clause 6 of this Agreement, and
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| (ii) | an amount equal to the actual cost to the Company of providing the benefits due for the period of notice to the Executive pursuant to Clauses 7 and 6 of this Agreement, | |
| in each case divided by 12 (twelve). | ||
| 1.3.3 |
On the
termination of the Executive's employment under this Clause 1, the
Executive's rights to receive shares or exercise rights in relation to (or
calculated by reference to) shares under any relevant bonus or incentive
scheme will be determined in accordance with the rules of the relevant
scheme.
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| 2. | Obligations during Employment | |
| The Executive shall during the continuance of his employment: | ||
| (a) | serve the Company to the best of his ability in the capacity of Chief Financial Officer; | |
| (b) |
faithfully and
diligently perform such duties and exercise such powers consistent with
them as the Board may from time to time properly assign to or confer upon
him in such capacity or otherwise in connection with the business of the
Company or any Associated Company;
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| (c) |
perform and
exercise the said duties and powers on behalf of any Associated Company
and act as a director or other officer of any Associated
Company;
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| (d) |
do all in his
power to protect, promote, develop and extend the business interests and
reputation of the Group;
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| (e) |
at all times
and in all respects conform to and comply with the lawful and reasonable
directions of the Board;
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| (f) |
upon receiving
reasonable notice promptly give to the Board (in writing if so requested)
all such information, explanations and assistance as it may require in
connection with the business and affairs of the Company and any Associated
Company for which he is required to perform duties;
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| (g) |
unless
prevented by sickness, injury or other incapacity or as otherwise agreed
by the Board devote the whole of his time, attention and abilities during
his hours of work (which shall be normal business hours and such
additional hours as may be necessary for the proper performance of his
duties) to the business and affairs of the Company and any Associated
Company for which he is required to perform duties (save that the
Executive may, with the prior written consent of the Board, become a
non-executive director of another company);
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| (h) |
work at such
place of business of the Company or any Associated Company as the Company
may reasonably require for the proper performance and exercise of his
duties and powers and the Executive may be required to travel on the
business of the Company and any Associated Company for which he is
required to perform duties; and
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| (i) | comply with the Company's Code of Ethics Policy. | |
| 3. | Further Obligations of the Executive | |
| 3.1 |
During the
continuance of his employment the Executive shall devote his whole time
and attention to his duties under this Agreement and shall not directly or
indirectly carry on or be engaged, concerned or interested in any other
business, trade or occupation otherwise than as a holder directly or
through nominees (including for the purposes hereof through any trust
whether established by the Executive or otherwise and whether
discretionary or otherwise of which the Executive is a beneficiary) of not
more than 3% in aggregate of any class of shares, debentures or other
securities in issue from time to time of any company (or, if different,
amounting to no more than 3% in terms of the economic value of all such
shares and securities (whether by way of dividend or upon any return in
capital) and/or voting or other rights attaching thereto in respect of any
matters) which are for the time being quoted or dealt with on any
recognised investment exchange (as defined by section 285(1)(a) of the
Financial Services and Markets Act 2000) provided that nothing in this
Clause 3.1 shall prevent the Executive from continuing to hold his current
portfolio of investments in securities.
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| 3.2 |
During the
continuance of his employment the Executive shall in relation to any
dealings in securities comply with all laws affecting dealings in the
securities of such companies and all regulations of any relevant stock
exchanges on which such dealings take place.
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| 3.3 | During the continuance of his employment the Executive: | |
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| (a) |
shall not
directly or indirectly procure, accept or obtain for his own benefit (or
for the benefit of any other person) any payment, rebate, discount,
commission, vouchers, gift, entertainment or other benefit from any third
party in respect of any business transacted or proposed to be transacted
(excluding air miles or similar vouchers from other such schemes) (whether
or not by him) by or on behalf of the Company or any Associated Company
("Gratuities");
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| (b) |
shall observe
the terms of any policy issued by the Company in relation to Gratuities;
and
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| (c) |
shall
immediately disclose and account to the Company for any Gratuities
received by him (or by any other person on his behalf or at his
instruction).
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| 4. | Remuneration | |
| 4.1 |
The Company
shall pay to the Executive with effect from 1 July 2008 a basic salary
(which shall accrue from day to day) at the rate of £400,000 per year
inclusive of any directors' fees payable to the Executive under the
articles of association of the Company or any Associated Company (and any
such fees as the Executive shall receive he shall pay to the Company).
Such basic salary shall be inclusive of an annual amount payable in
respect of Board duties performed by the Executive in the Republic of
Ireland ("the Irish Board Fee"), The Irish Board Fee shall be
£65,000 or such greater amount as is payable to the senior non-executive
director of the Company (other than the Chairman) in respect of his or her
duties as a director of the Company. The salary shall be payable by equal
monthly instalments in arrears on the last day of each calendar month and
shall be subject to review by the Remuneration Committee not less than
annually with effect from 1 January in each year.
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| 4.2 |
Subject as
stated below the Executive shall be entitled to receive a bonus in
accordance with the rules and terms of the Company's EAIP scheme (or such
other bonus scheme as the Company may Implement from time to time). The
amount of any bonus shall be at the discretion of the Remuneration
Committee. The target annual bonus under the EAIP shall be a cash target
of fifty-five per cent (55%) and a share target of fifteen per cent (15%)
of the Executive's basic annual salary from time to time paid under Clause
4.1. The maximum annual bonus under the EAIP shall be a cash bonus of one
hundred per cent (100%) and a maximum share bonus of fifty-five per cent
(55%) of the Executive's basic annual salary under Clause 4.1. Any bonus
payment shall be subject to deductions as appropriate. The Company
reserves the right to change any bonus terms from year to
year.
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| 4.3 |
In the event
that the Executive's employment hereunder terminates during any bonus year
he shall be entitled to receive a proportion of the bonus he would have
received had his employment not been terminated and the Remuneration
Committee shall use its best endeavours but at its sole discretion to
determine the estimation of such bonus. Such proportion shall be
calculated as the fraction derived from dividing the period during which
the Executive was employed hereunder during the relevant bonus year by the
period of the bonus year.
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| 5. | Incentive Schemes | |
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If the Executive is at any time
granted options or awards pursuant to a share incentive scheme of the
Company, those options or awards shall be subject to the rules of that
scheme as in force
from time to time which rules shall not form part of the Executive's
service agreement. In
particular, if the Executive's employment should terminate for any reason
(including as
a result of a repudiatory breach of contract by the Company) he will not
be entitled to
any compensation for any loss of any right or benefit or prospective right
or benefit under any such
scheme which he may have enjoyed whether such compensation is claimed
by way of
damages for wrongful dismissal or other breach of contract or by way of
compensation
for loss of office or
otherwise.
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| 6. | Pension Scheme | |
| 6.1 |
The Executive
shall be entitled to a pension contribution in respect of his basic salary
(but excluding the Irish Board Fee). The Company shall contribute to such
pension scheme as the Executive shall specify an amount equal to such
proportion of his basic salary (excluding the Irish Board Fee) as would
give rise to a contribution equal to twenty-five per cent (25%) of the
Executive's basic salary hereunder from time to time. Such contributions
shall be made monthly at the date when salary is paid hereunder. Such
contributions shall be in addition to the Executive's basic
salary.
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| 6.2 |
No
contracting-out certificate is in force in respect of the employment of
the Executive.
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| 7. | Insurances | |
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Subject to his
complying with and satisfying any applicable requirements of the relevant
insurers the Company shall during the continuance of his
employment:
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| (a) |
provide for
the Executive and his partner or spouse and children under the age of 18
years membership of an appropriate private patient medical plan (to
include cover for dental treatment) with such reputable medical expenses
insurance scheme as the Company shall decide from time to time. The
Executive shall be entitled to remain a member of such plan in accordance
with and subject to its rules from time to time. The Executive shall also
be allowed to participate in an annual Executive Physical program, subject
to a maximum annual reimbursement of £1,500;
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| (b) |
provide the
Executive with life assurance cover which in the event of his death during
the continuance of his employment may pay to his chosen dependants
(subject only to the discretion of the trustees of the appropriate scheme)
a lump sum equal to a minimum of 4 (four) times his then annual rate of
salary. If such lump sum is more than the permitted maximum, such surplus
will be made available (subject to the discretion of the trustees
aforesaid) for the purchase of an annuity for the Executive's dependants
subject as necessary to a medical examination. The Executive will co operate
with the Company in any way reasonably necessary in order for the Company
to comply with its obligations thereunder including, without prejudice to
the generality hereof, by submitting himself for such medical examination
as may be required of him in connection therewith from time to
time;
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| (c) |
provide for
the Executive membership at the cost of the Company of any permanent
health care scheme and prolonged disability scheme operated by the Group
for the benefit of executives. The Executive shall be entitled to remain a
member of such scheme in accordance with and subject to its rules from
time to time; and
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| (d) |
provide
Directors' and Officers' insurance cover for the benefit of the Executive
under the same policy as will be provided for the other directors such
cover to continue to cover the Executive in respect of acts or omissions
committed during his employment hereunder whether claims are made during
or within the period of 7 (seven) years after the termination of the
employment hereunder.
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| 8. | Other Benefits | |
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The Company
shall provide the Executive with the sum of £12,000 per annum (payable in
12 (twelve) monthly instalments on the date the Executive's salary is paid
less any deductions the Company is required to make by law) to enable the
Executive to purchase, maintain, comprehensively insure and tax a car for
his use during the continuance of his employment, together with
reimbursement of all business and reasonable private
petrol.
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| 9. | Expenses | |
| 9.1 |
The Company
shall during the continuance of his employment reimburse the Executive in
accordance with the Company's travel and expenses policy as amended from
time to time.
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| 9.2 |
The Company
shall, under its Executive Financial Services Reimbursement Programme,
provide the Executive with the sum of £5,000 per annum (less any
deductions the Company is required to make by law) towards the cost of
legal expenses and financial planning services.
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| 10. | Holidays | |
| 10.1 |
The Executive
shall (in addition to the usual public and bank holidays) be entitled
during the continuance of his employment to 25 (twenty-five) working days'
paid holiday in each holiday year, or such greater number in accordance
with the Company's policy from time to time to be taken at a time or times
as shall be convenient to the Company.
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| 10.2 |
The Executive
shall be entitled to carry forward to the following year up to 5 days'
untaken annual holiday entitlement in
each holiday year. The carry forward of any additional holiday entitlement
not taken by him for any reason from one holiday year to the next shall
require the prior written consent of the Board (such consent not to be
unreasonably withheld).
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| 10.3 |
Upon the
termination of his employment the Executive's entitlement to accrued
holiday pay (which accrues at the rate of 2.09 days per month) shall be
calculated on a pro rata basis in respect of each completed month of
service in the holiday year in which his employment terminates and the
appropriate amount shall be paid to the Executive in addition to payment
in lieu for any holidays not taken in previous holiday years provided that
if the Executive shall have taken more days holiday than his accrued
entitlement the Company is hereby authorised to make an appropriate
deduction from the Executive's final salary payment.
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| 11. | Incapacity | |
| 11.1 |
Subject to his
complying with the Company's procedures relating to the notification and
certification of periods of absence from work as from time to time in
force the Executive shall continue to be paid his salary (inclusive of any
statutory sick pay or social security benefits to which he may be
entitled) during any periods of absence from work due to sickness, injury
or other incapacity incapacitating the Executive from attending to his
duties up to a maximum of 26 (twenty-six) weeks in aggregate in any period
of 52 (fifty-two) consecutive weeks.
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| 11.2 |
If the
Executive shall have been absent from work due to sickness, injury or
other incapacity for a continuous period of 26 (twenty-six) weeks or more
then he shall receive such benefits (if any) as are available to him under
the terms of the Company's permanent health insurance scheme or such
greater sum (if any) as the Board may in its absolute discretion
decide.
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| 11.3 |
If any incapacity of the
Executive shall be or appear to be caused by any alleged action or wrong
of a third party and the Executive shall decide to claim damages in
respect thereof, then the Executive shall use all reasonable endeavours to
recover damages for loss of earnings over the period for which salary has
been or will be paid to him by the Company under Clause 11.1, and shall
account to the Company for any such damages recovered (in an amount not
exceeding the actual salary paid or payable to him by the Company under
Clause 11.1 in
respect of the said period) less any costs borne by him in achieving such
recovery.
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The Executive
shall keep the Company informed of the commencement, progress and outcome
of any such claim.
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| 12. | Property Intellectual | |
| 12.1 |
For the
purposes of this Clause 12 the term "IPRs" means any and all patents,
trade and service marks, unregistered design rights, registered design
rights, trade and business
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names,
copyrights (including copyright in software), database rights, topography
rights and all other intellectual property rights (whether or not any of
these is registered and including applications for registration of any
such thing) and all rights or forms
of protection of a similar nature or having equivalent or similar effect
to any of these which may subsist anywhere in the
world.
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12.2
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If the Executive creates, makes,
authors, originates, conceives or writes (either alone or with others) any
works, designs, innovations, inventions, improvements, processes, get-ups
or trade marks in the course of his employment with the Company
("Works"):
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(a)
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the Executive will promptly
disclose to the Company full details of any such inventions, processes,
improvements or other Works;
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(b)
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all rights (including, without
limitation, all IPRs) in and to such Works shall solely legally and
beneficially vest in the Company immediately upon their creation
without any payment to the Executive;
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(c)
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the Executive hereby irrevocably and
unconditionally waives, in favour of the Company, its licensees and
successors-in-title any and all moral rights conferred on the Executive in
relation to the Works (existing or future); and
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(d)
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the Executive shall not knowingly
do anything, or omit to do anything, to imperil the validity of any patent
or protection, or any application therefore, relating to any of the
Works.
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12.3
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To the extent such rights and IPRs do
not so vest in the Company, the Executive hereby (i) assigns to the
Company all future copyright, database rights and unregistered design
rights in the Works and (ii) in respect of all other rights and IPRs
agrees to assign to the Company all of the
Executive's right, title and interest (including without limitation all
IPRs) in the Works.
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12.4
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The Executive hereby irrevocably
authorises the Company to be his attorney, and to make use of his name and to sign
and execute any documents and/or perform any act on his behalf, for the
purpose of giving to the Company the full benefit of the provisions of
this Clause 12 and, where permissible, to obtain patent or other
protection in respect of any of the Works in
the name of the Company or the Company's
nominee.
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12.5
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The Executive shall from time to
time, both during his employment under this Agreement and thereafter, at
the request and expense of the Company, promptly do all things
and execute all documents necessary or desirable to give effect to the
provisions of this Clause 12 including, without limitation, all things
necessary to obtain and/or maintain patent or other protection in respect
of any Works in any part of the world and
to vest such rights (including, without limitation, all IPRs) in and to
the Works in the Company or the Company's
nominee.
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12.6
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For the avoidance of doubt, the
provisions of this Clause 12 shall apply to any rights (including, without
limitation, any IPRs) in the Works arising in any jurisdiction, and the
provisions of this Clause 12 shall apply in respect of any jurisdiction to
the extent permitted by the directives,
statutes, regulations and other laws of any such
jurisdiction.
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13.
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Confidentiality
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13.1
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The Executive shall not (other
than in the proper performance of his duties or without the prior written consent
of the Board or unless ordered by a court of competent jurisdiction) at
any time either during the continuance of his employment hereunder or
after its termination disclose or communicate to any person or use for his
own benefit or the benefit of any
person other than the Company or any Associated Company any confidential
information which may come to his knowledge in the course of his
employment hereunder concerning the business or finances of any member of
the Group or of any of its suppliers, agents,
distributors or customers and the Executive shall during the
continuance of his employment hereunder
use
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his best endeavours (and
following any termination thereof his reasonable endeavours) to prevent the
unauthorised publication or misuse of any confidential information
provided that such
restrictions shall cease to apply to any confidential information which
may enter the public domain
other than through the default of the Executive but in any event the
restrictions in this Clause
13.1 shall remain in full force and effect for so long as the Executive is
in a position to
utilise such information more readily than persons who have not been
employed by the Company or
its Associated Companies.
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| 13.2 |
All notes and memoranda of any
trade secret or confidential information concerning the business of the
Company or the Associated Companies or any of its or their suppliers,
agents, distributors, customers or others which shall have been acquired,
received or made by the Executive during the course of his employment
shall be the property of the Company and shall be surrendered by the
Executive to someone duly authorised in that behalf at the termination of
his employment or at the request of the Board at any time during the
course of his employment.
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| 13.3 |
Without prejudice to the
generality of Clause 13.1 the following is, for the avoidance of doubt, a
non-exhaustive list of matters which in relation to the Company and the
Associated Companies are considered confidential and must be treated as
such by the Executive (for the purposes of this
Agreement):
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| (a) | any trade secrets of the Company or any Associated Company; | |
| (b) |
any information In respect of
which the Company or any Associated Company is bound by an obligation of
confidence to any third party;
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| (c) |
customer lists and details of
contacts with or requirements of customers; and
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| (d) |
any invention, technical data,
know-how, instruction or operations manual or other manufacturing or trade
secrets of the Group and/or their clients/customers.
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| 13.4 |
The Executive shall comply with
any reasonable policy produced by the Company concerning the Executive's
ability to either directly or indirectly publish any opinion, fact or
material or deliver any lecture or address or participate in the making of
any film, radio broadcast or television transmission or communicate with
any representative of the media or any third party relating to the
business or affairs of the Company or any Associated Company or to any of
its or their officers, employees, customers/clients, suppliers,
distributors, agents or shareholders or to the development or exploitation
of Works or IPRs (as defined in Clauses 12.1 and 12.2). For the purpose of
this Clause "media" shall include television (terrestrial, satellite and
cable) radio, newspapers and other journalistic
publications.
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| 14. | Garden Leave | |
| 14.1 |
The Company may during all or
any part of the period of notice as specified in Clause 1.2 of this
Agreement (whether given by the Company or by the Executive) place the
Executive on garden leave by not providing him with any work and excluding
him from any premises of the Company and any Associated Company (and need
not give any reason for so doing).
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| 14.2 |
Such period of garden leave
will not constitute a termination of the Executive's employment (and will
not prejudice his continuing entitlement to salary and benefits). The
Executive will continue to be bound by the provisions of this Agreement
and must during any period of garden leave continue at all times to
conduct himself with good faith towards the Group and not do anything that
is harmful to the Group.
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| 14.3 |
The Executive may not during
any period of garden leave directly or indirectly be employed by or
retained by or advise or assist any other person or entity in any capacity
either paid or unpaid (except approved non-executive
positions).
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| 14.4 |
The Company may require the
Executive to resign from office as a director of the Company or any
Associated Company during any period of garden leave and the Executive
must resign as soon as reasonably practicable after any such request is
made. Notwithstanding any other provision of this Agreement, such
resignation shall not terminate the Executive's employment under this
Agreement.
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| 14.5 |
The Executive acknowledges that
any demand which may be made in accordance with the terms of Clauses 14.1
to 14.4 above shall not constitute a breach of contract of any kind
whatsoever. The Executive will not have any claim against the Company or
any Associated Company as a consequence of being required to comply with
those clauses.
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| 14.6 |
The Executive hereby
irrevocably appoints the Company to execute any instrument on his behalf
to effect his resignation as a director if he fails to resign upon request
in accordance with Clause 14.4.
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| 14.7 |
The Executive shall, during any
period of garden leave, remain available upon reasonable prior notice to
perform any reasonable duty requested by the Company and shall co-operate
generally with the Company to ensure a smooth hand over of his
duties.
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| 14.8 |
The Company may appoint another
individual to carry out the Executive's duties during any period that he
is on garden leave in accordance with Clause 14.
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| 14.9 |
At the end of any period of
garden leave under Clause 14.1, where this occurs before the end of the
notice period under Clause 1.2, the Company shall either pay the Executive
a sum equal to his basic salary and the Relevant Amount (calculated in
accordance with Clause 1.3) for and in lieu of the balance of any period
of notice given by the Company or the Executive (less any deductions the
Company may be required by law to make) or require the Executive to return
to work for the remainder of the notice period.
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| 15. | Termination of Employment | |
| 15.1 |
The employment of the Executive
may be terminated by the Board forthwith without notice or payment in lieu
of notice if the Executive:
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| (a) |
commits any serious or
persistent breach or non-observance of any of the terms, conditions or
stipulations contained in this Agreement having been, in the case of
persistent breaches, warned in advance by the Board in writing of the
same;
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| (b) |
is guilty of any gross default
or gross misconduct in connection with or affecting the business or
affairs of the Company or any Associated Company for which he is required
to perform duties;
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| (c) |
is guilty of conduct which
brings or is likely to bring himself or the Company or any Associated
Company into disrepute;
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| (d) |
is convicted of an arrestable
criminal offence (other than an offence under the road traffic legislation
in the United Kingdom or elsewhere for which a non-custodial penalty is
imposed);
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| (e) |
is adjudged bankrupt or makes
any arrangement or composition with his creditors or has an interim order
made against him pursuant to section 252 of the Insolvency Act
1986;
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| (f) |
becomes of unsound mind or
becomes a patient under the Mental Health Act 1983;
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| (g) |
is or becomes prohibited by law
from being a director; or
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| (h) | voluntarily resigns as a director of the Company otherwise than at the request of the Board. | |
| 15.2 | Upon the termination of his employment (for whatever reason and howsoever arising) the Executive: | |
| (a) |
shall not take away, conceal or
destroy but shall immediately deliver up to the Company all documents
(which expression shall include but without limitation notes, memoranda,
correspondence, drawings, sketches, plans, designs and any other material
upon which data or information is recorded or stored) relating to the
business or affairs of the Company or any Associated Company or any of
their clients/customers, shareholders, employees, officers, suppliers,
distributors and agents (and the Executive shall not be entitled to retain
any copies or reproductions of any such documents) together with any other
property belonging to the Company or any Associated Company (including his
car and its keys) which may then be in his possession or under his
control;
|
|
| (b) |
shall, at the request of the
Board and without prejudice to any rights of the Executive arising as a
result of the loss of his employment hereunder, immediately resign without
claim for compensation from office as a director of the Company and any
Associated Company and from any other office held by him in the Company or
any Associated Company (but without prejudice to any claim he may have for
damages for breach of this Agreement) and in the event of his failure to
do so the Company is hereby irrevocably authorised to appoint some person
in his name and on his behalf to sign and deliver such resignations to the
Board and/or to each such Associated Company;
|
|
| (c) |
shall not at any time
thereafter make any untrue or misleading oral or written statement
concerning the business and affairs of the Company or any Associated
Company nor represent himself or permit himself to be held out as being in
any way connected with or interested in the business of the Company or any
Associated Company (except as a former employee for the purpose of
communicating with prospective employers or complying with any applicable
statutory requirements);
|
|
| (d) |
shall not at any time
thereafter use the name "Shire" or any name capable of confusion therewith
(whether by using such names as part of a corporate name or otherwise)
(save for the making of factual statements (subject always to the
provisions of Clause 13) describing his employment with the Company for
the purposes of obtaining an alternative remunerated position as defined
at Clause 15.4(vii)); and
|
|
| (e) |
shall immediately repay all
outstanding debts or loans due to the Company or any Associated Company
and the Company is hereby authorised to deduct from any wages (as defined
by section 27 of the Employment Rights Act 1996) of the Executive a sum
equal to any such debts or loans.
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|
| 15.3 |
If the employment of the
Executive under this Agreement is terminated by reason of the liquidation
of the Company for the purpose of reconstruction or amalgamation or as
part of any arrangement for the amalgamation or reconstruction of the
Company not involving Insolvency and the Executive is offered employment
with any concern or undertaking resulting from the reconstruction or
amalgamation on terms and conditions which taken as a whole are not less
favourable than the terms of this Agreement then the Executive shall have
no claim against the Company in respect of such
termination.
|
|
| 15.4 | (i) |
Notwithstanding the provisions
of Clauses 1.2, 1.3 and 15.1 of this Agreement, the Company may instead,
at its sole discretion, terminate the Executive's employment by giving
written notice to him that it is exercising its rights under this Clause
15.4 to terminate the employment and make Monthly Payments (as defined
below) to the
|
9
|
Executive. The maximum number
of Monthly Payments shall be 12 unless notice under Clause 1 has been
given before the Company makes any election under this Clause 15.4, and
the Executive has worked part of that notice period, in which case the
maximum number of Monthly Payments shall be reduced accordingly to reflect
the remaining period of notice. The Monthly Payments shall commence on the
date such notice is given to the Executive or such date thereafter as the
Company shall determine and the Executive's employment under this
Agreement shall cease on that day (the "Commencement Date").
|
||
| (ii) |
Subject to adjustments as
contemplated in Clause 15.4(iii) below each Monthly Payment shall be
calculated by dividing the Executive's basic salary at the date notice is
given by twelve and adding the Relevant Amount as defined in Clause 1.32.
Each Monthly Payment shall then be paid on a monthly basis subject to such
deductions as may be required by law and in accordance with Clause
15.4(vi) below.
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|
| (iii) |
The Company may instead of
paying the part of the Relevant Amount relating to benefits as referred to
in 15.4(ii) continue the provision of those benefits which the Executive
would otherwise have been entitled to receive during the period of the
Monthly Payment. If the Company decides to continue the provision of the
benefits, the Monthly Payment shall be reduced
accordingly.
|
|
| (iv) |
On the termination of the
Executive's employment under this Clause 15, the Executive's rights to
receive shares or exercise rights in relation to (or calculated by
reference to) shares under any relevant bonus or incentive scheme will be
determined in accordance with the rules of the relevant
scheme.
|
|
| (v) |
The Executive shall be under a
duty, beginning on the Commencement Date, to use reasonable endeavours
actively to seek a suitable alternative remunerated position (defined
below) and shall also be required to keep the Company informed in relation
to his search when reasonably requested.
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|
| (vi) |
If the Executive obtains an
alternative remunerated position during the period for payment of the
Monthly Payments then:
|
|
| (a) |
each of the Monthly Payments
still outstanding shall be reduced by the basic monthly remuneration to
which the Executive is entitled, from the alternative remunerated
position, and only the balance shall be due to the
Executive;
|
||
| (b) |
any benefits provided by the
Company (or their value paid in lieu as part of the Monthly Payments)
which are provided by the alternative remunerated position (on an
equivalent basis) shall cease;
|
||
| (c) |
or the purposes of calculating
the amount of the deduction in respect of remuneration from the
alternative remunerated position, any basic salary or fees shall be
included, together with the value of any pension provided, but not any
entitlement to bonus or the value of any equity or equity-based incentive
arrangements. The value of any entitlement to pension shall be calculated
as the amount which the new employer contributes to a pension scheme on
the Executive's behalf (in the case of a defined benefit arrangement,
being the long term contribution rate, ignoring any adjustment to reflect
an overall deficit or surplus in the scheme).
|
||
| (vii) | For the purposes of this Clause 15.4 "alternative remunerated position" shall mean any new position, whether under a contract of employment, consultancy arrangement, non executive appointment or otherwise, whereby the Executive is directly or indirectly remunerated. | ||
10
| (viii) |
The Executive will not be
entitled to receive any payment in addition to the Monthly Payments in
respect of any holiday entitlement that would have accrued during the
period for which the Monthly Payments are made, and will not accrue any
entitlement to pension contributions or bonus during such
period.
|
|
| (ix) |
The
Company' s
determination as to the value of any benefit or entitlement for the
purposes of this Clause 15.4, shall be binding on the parties in the
absence of manifest
error.
|
|
| 15.5 |
Any delay or
forbearance by the Company in
exercising any right of termination
shall not constitute a waiver of
It.
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|
| 16. | Executive's Covenants | |
| 16.1 |
The Executive acknowledges that
during the course of his employment with the Company he will receive and
have access to confidential information of the Company and its Associated
Companies (including without limitation those matters specified in Clause
133 of this Agreement) and he will also receive and have access to
detailed client/customer lists and information relating to the operations
and business requirements of those clients/customers and accordingly he is
willing to enter into the covenants described in this Clause 16 in order
to provide the Company and its Associated Companies with what he considers
to be reasonable protection for those interests.
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|
| 16.2 | In this Clause 16: | |
| (a) |
"Restricted Business" means the Business of the
Company and its Associated Companies at the time of the termination of the
Executive's employment with which the Executive was involved to a material
extent at any time during the period of 12 (twelve) months ending on the
Restriction Date and for the purposes of this Clause the term "Business"
shall mean the research, development, marketing, sale or supply of
pharmaceuticals for administration to humans;
|
|
| (b) |
"Restricted Customer" means any firm, company or
other person who, at any time during the period of 12 (twelve) months
ending on the Restriction Date,
was a customer of or in the habit of dealing with the Company or
any Associated Company and with whom the Executive dealt
to a material extent or for whom or which the Executive was responsible on behalf of the
Company or any Associated Company during that period and in respect of
such customer material damage to the Interests of the Company or any
Associated Company could occur if such customer ceased or reduced its
business with the Company or any Associated
Company;
|
|
| (c) |
"Restricted Employee" means any person who, at the
Restriction Date was employed by the Company
or any Associated Company at a senior level and who could materially damage
the interests of the Company or any Associated Company if he
became employed in any
business concern in competition with the Restricted Business and with whom the
Executive worked closely or about whom the Executive obtained material
detailed information, in either
case at any time during the period of 12 (twelve) months ending on the
Restriction Date; and
|
|
| (d) |
"Restriction Date" means the date of termination of
this Agreement.
|
|
| 16.3 |
The Executive will not, for a
period of 12 (twelve) months after the Restriction Date, solicit or
endeavour to entice away from the Company or any Associated Company the
business or custom of a Restricted Customer with a view to providing or
receiving goods or services to or from that Restricted Customer in
competition with any Restricted
Business.
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|
11
| 16.4 |
The Executive will not, for a
period of 12 (twelve). months after the Restriction Date, provide goods or
services to or otherwise have any business dealings with any Restricted
Customer in the course of any business concern which is in competition
with any Restricted Business.
|
|
| 16.5 |
The Executive will not, for a
period of 12 (twelve) months after the Restriction Date, in the course of
any business concern which is in competition with any Restricted Business
offer employment to or otherwise endeavour to entice away from the Company
or any Associated Company any Restricted Employee.
|
|
| 16.6 |
The Executive will not, without
the prior written consent of the Board, for a period of 6 (six) months
after the Restriction Date, be engaged in or concerned in any capacity in
any business concern which is or might reasonably be expected to be in
competition with any Restricted Business. This Clause shall not restrain
the Executive from being engaged or concerned in any business concern in
so far as the Executive's duties or work shall relate
solely:
|
|
| (a) |
to geographical areas where the
business concern is
not in competition with the Restricted
Business; or
|
|
| (b) |
to services or activities of a
kind with which the Executive was not concerned to a material extent
during the period of 12 (twelve) months ending on the Restriction
Date.
|
|
| 16.7 |
The obligations imposed on the
Executive by this Clause 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.
|
|
| 16.8 |
The Executive hereby agrees
that he will at the request and expense of the Company enter into a direct
agreement or undertaking with any Associated Company whereby he will
accept restrictions and provisions corresponding to the restrictions and
provisions in this Clause 16 (or such of them as may be appropriate in the
circumstances) in relation to such activities and such area and for such a
period not exceeding 12 (twelve) months as such Associated Company may
reasonably require for the protection of its legitimate business
interests.
|
|
| 16.9 |
It is agreed between the
parties that whilst the restrictions set out in this Clause 16 are
considered fair and reasonable for the protection of the Company's
business and trade secrets, if it should be found that any of the
restrictions be void as going beyond what is fair and reasonable in all
the circumstances and if by deleting part of the wording or substituting a
shorter period of time or different geographical limit or a more
restricted range of activities for any of the period of time, geographical
limits or ranges or activities set out in this Clause 16 it would not be
void then there shall be substituted such next less extensive period
and/or limit and/or activity or such deletions shall be made as shall
render this Clause 16 valid and enforceable.
|
|
| 17. | Change of Control | |
| 17.1 | For the purposes of this Clause 17: | |
| (a) | "Relevant Event" means either: | |
| (i) |
the termination by the Company
of the Executive's employment (other than for
cause in accordance with Clause 15 of this Agreement);
or
|
||
| (ii) |
the Executive's
resignation where such resignation
is as a consequence of a repudiatory breach of contract by the
Company and amounts to
a constructive dismissal,
|
||
|
within the period of 12
(twelve) months following the date of a Change of
Control.
|
|||
12
| b) |
Subject to Clause 17.6 below
"Change of Control" means where any person either alone or together with
any person acting in concert with him obtains control of the Company as
defined in section 840 of the Income and Corporation Taxes Act
1988.
|
|
| 17.2 |
If a Relevant Event occurs the
Company shall pay to the Executive within 14 (fourteen) days of that
Relevant Event a sum equal to the aggregate of:
|
|
| (a) | the value of his then current rate of basic salary for the period of 1 (one) year; and | |
| (b) |
an amount in lieu of annual
bonus to be decided at the absolute discretion of the Remuneration
Committee, as that committee was constituted immediately prior to the
Change of Control, up to the maximum bonus, based on 150% achievement of
group and personal objectives for the bonus year in which his employment
terminates (based on the Executive's salary at the date on which his
employment terminates); and
|
|
| (c) |
an amount in lieu of the
Company's contributions to the Executive's pension scheme under Clause 6
of this Agreement for 1 (one) year; and
|
|
| (d) |
an amount in respect of the
actual cost to the Company of the provision of the benefits due under
Clauses 7 and 8 of this Agreement for 1 (one) year.
|
|
|
For the avoidance of doubt, as
at the date of this Agreement, the maximum bonus which would be payable
under Clause 17.2(b) is a maximum cash element of one hundred per cent
(100%) and a maximum share element of fifty-five per cent (55%). Such
limits may be amended by the Company from time to time.
|
||
| 17.3 |
Subject to any rights accrued
at the date of termination of the Executive's employment under the
provisions of any pension scheme of the Company, any payment by the
Company pursuant to this Clause 17 shall be made in full and final
settlement of all and any claims arising from or in connection with the
Executive's employment or its termination or his office as Chief Financial
Officer and its loss in each case in respect of the Company or any
Associated Companies.
|
|
| 17.4 |
All payments to be made
pursuant to this Clause 17 shall be paid less any necessary
withholdings.
|
|
| 17.5 |
The Executive hereby agrees
that he shall not, following a payment under this Clause 17, bring any
claim before any court or employment tribunal relating to unfair
dismissal.
|
|
| 17.6 |
This Clause shall not apply
where in connection with a scheme of reconstruction or amalgamation or
reorganisation of the Company and one or more of its Associated Companies
the Executive refuses an offer of employment on terms identical in all
material respects to those hereunder by the company which following such
reconstruction or reorganisation replaces the Company or the relevant
Associated Companies.
|
|
| 18. | Disciplinary and Grievance Procedures | |
| 18.1 |
The Executive shall be expected
to maintain the highest standard of integrity and behaviour. For the
purpose of disciplinary and grievance procedures the Executive's
supervisor is the Company's Chief Executive Officer.
|
|
| 18.2 |
If the Executive is not
satisfied with any disciplinary decision taken in relation to him he may
apply in writing within 14 (fourteen) days of that decision to the Board
whose decision shall be final.
|
|
13
| 18.3 |
If the Executive has any
grievance in relation to his employment he may raise it in writing with
the
Board whose decision shall be
final.
|
|
| 19. | Directorship | |
|
The
Executive shall not save at the request or with the consent of the
Board:
|
||
|
(a)
|
voluntarily
resign as a director of the Company;
|
|
|
(b)
|
do
or fail to do anything which causes him
to be prohibited by law from continuing to act as a director;
or
|
|
|
(c)
|
voluntarily
do or refrain from doing any act whereby his office as a director of the
Company is or becomes liable to be vacated.
|
|
|
The
removal of the Executive from office as a director of the Company or the
failure of the Company in general meeting to re-elect the Executive as a
director of the Company (if he shall be obliged to retire by rotation or
otherwise pursuant to the Articles
of Association) shall terminate the Executive's employment under this
Agreement and such termination shall be without prejudice to any claim
which the Executive may have for damages for breach of this Agreement
provided that the Company was not entitled at
the time of such removal or failure to re-elect to terminate his
employment pursuant to Clause 15.1.
|
||
|
20.
|
Data
Protection
|
|
|
The
Executive consents to the Company or any
Associated Company holding and processing both electronically and manually
the data it collects which relates to the Executive for the purposes 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 an
Associated Company or to other third parties whether or not outside the
European Economic Area 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.
|
||
|
21.
|
Notices
|
|
|
21.1
|
Any
notice to be given
under this Agreement shall be given in writing and shall be deemed to be
sufficiently served by one party on the other if it is delivered
personally or is sent by first class registered or recorded delivery
pre-paid
post (air mail if overseas) addressed
to either the Company's registered office for the time being or the
Executive's address as set out in this Agreement (or such other address as
shall be notified to the Company in accordance with this Clause) as the
case may be.
|
|
|
21.2
|
Any
notice sent by post shall be deemed (in the absence of evidence of earlier
receipt) to be received 2 (two) days after posting (6 (six) if sent by air
mail) and in proving the time such notice was sent and shall be sufficient
to show that the envelope containing
it was properly addressed, stamped and posted. Any notice delivered
personally shall be deemed to be received when delivered to the address
provided for in Clause 21.1.
|
|
|
22.
|
Miscellaneous
|
|
|
22.1
|
The
Executive hereby warrants that
by virtue of entering into this Agreement he will not be in breach of any
express or implied terms of any contract or of any other obligations
legally
binding upon him.
|
|
|
22.2
|
Any
benefits provided by the Company to
the Executive or
his family which are
not expressly referred
to in this Agreement shall
be regarded
as
ex gratia benefits
provided at
the entire discretion
of the Company and
shall not form
part of the Executive's
contract of employment.
|
|
14
| 22.3 |
The
Company shall be entitled at any time during the Executive's employment to
make deductions from the Executive's salary or from any other sums due to
the Executive from the Company or any Associated Company in respect of any
overpayment of any kind made to the Executive or in respect of any debt or
other sum due from him provided always that reasonable evidence of the
validity of such deductions is provided to the
Executive.
|
|
| 23. | Definitions and Interpretation | |
| 23.1 | In this Agreement: | |
| "Articles of Association" |
means
the Company's articles of association in force at the date hereof and from
time to time thereafter
|
|
| "Associated Company" |
means a company which is from
time to time a subsidiary or a holding company of the Company or a
subsidiary (other than the Company) of a holding company of the Company.
In this definition "subsidiary" and "holding company" have the same
meaning as in section 736 of the Companies Act 1985;
|
|
| "Board" |
means
the board of directors for the time being of the Company including any
duly appointed committee thereof or the directors present at a meeting of
the directors of the Company at which a quorum is present but excluding
the Executive (as appropriate);
|
|
| "Group" |
means the Company and the
Associated Companies; and
|
|
| "Remuneration Committee" |
means the remuneration
committee of the Board from time to
time.
|
| 23.2 |
The
headings in this Agreement are for convenience only and shall not affect
its construction or
interpretation.
|
|
| 23.3 |
References in this Agreement to
Clauses are references to clauses in this Agreement.
|
|
| 23.4 |
Any reference in this Agreement
to the employment of the Executive is a reference to his employment by the
Company whether or not during the currency of this
Agreement.
|
|
| 23.5 |
Any reference in this Agreement
to a person shall where the context permits include a reference to a
body corporate and to any unincorporated body of
persons.
|
|
| 23.6 |
Any word in this Agreement
which denotes the singular shall where the context permits include the
plural and vice versa and any word in this Agreement which denotes the
masculine gender shall where the context permits include the feminine
and/or the neuter genders and vice versa.
|
|
| 23.7 |
Any reference in this Agreement
to a statutory provision shall be deemed to include a reference to any
statutory amendment, modification or re-enactment of
it.
|
|
| 23.8 |
This Agreement supersedes any
previous agreements between the parties or any Associated Company relating
to the employment of the
Executive.
|
|
15
| 23.9 |
This Agreement is governed by
and shall be construed in accordance with the laws of Jersey and the
parties to this Agreement hereby submit to the exclusive jurisdiction of
the Jersey courts.
|
|
16
IN WITNESS whereof this Agreement has been
executed as a deed by the parties hereto and is intended and hereby delivered as
a deed on the date first above written.
|
Executed as a deed
by
SHIRE LIMITED acting by a
director and
its secretary/
two
directors:
|
)
)
)
|
/s/ ▇.▇.
▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇
▇▇▇
|
|
|
Executed as a
deed by
▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇
in the
presence of.
|
)
)
)
|
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ |
| Signature of witness: | /s/ ▇.▇. ▇▇▇▇▇ | |
| Name: | ▇.▇. ▇▇▇▇▇ | |
| Address: | ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ | |
| Collingbourne Ducis | ||
| Marlborough SN8 3EA | ||
| Occupation: | Secretary | |