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EXHIBIT 10.9
DATED 28 NOVEMBER 1996
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PROTEUS INTERNATIONAL PLC
AND
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SERVICE AGREEMENT
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RELATING TO
A MEDICAL DIRECTOR
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AN AGREEMENT made the 28th day of November One thousand nine hundred and ninety
six.
BETWEEN:
(1) PROTEUS INTERNATIONAL PLC whose registered office is at Proteus House,
Lyme ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ("the
Company") and
(2) ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ of Four Gables, ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ("the Director").
WHEREBY IT IS AGREED as follows:
DUTIES
1. The Company shall employ the Director and the Director shall serve the
Company as Medical Director of the Company to carry out such duties for
the Company and any Affiliate as the Board may direct commensurate with
his status or in such other capacity as may from time to time be
mutually agreed upon and subject to the following terms and conditions.
TERM
2. THE employment hereunder shall subject to earlier termination as
hereinafter provided be for an initial fixed term until 1st September
1997 and terminable at any time thereafter by the Director giving not
less than six months' notice in writing or by the Company giving not
less than 12 months' notice in writing.
PLACE OF BUSINESS
3. THE principal place of employment of the Director shall be at the
Company's offices at Macclesfield. The Company reserves the right to
transfer the Director at any time to a new place or places place of
employment but any relocation to such place or places of employment more
than fifteen miles from the Company's offices specified above would
follow agreement between the Company and the Director.
REMUNERATION
4.1 THE remuneration of the Director shall be a fixed salary (which shall
accrue from day to day) at the rate of Pound Sterling 77,500 per annum
(inclusive of any directors' fees payable to him under the Articles of
Association of the Company) payable by equal monthly instalments on the
28th day of every month.
4.2 The fixed salary payable to the Director hereunder shall be reviewed by
the Board on 01 April in each year that this Agreement remains in force
by the Board with a view to increasing the same but any increase shall
be in its absolute discretion.
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4.3. On any alteration in the amount of such fixed salary the amount of such
fixed salary following such alteration shall be endorsed by the parties
in the First Schedule hereto.
4.4 The company operates an Executive Directors' Bonus Scheme in which the
Director will be entitled to participate at the discretion of the Board.
PENSION AND INSURANCE BENEFITS
5.1 THE Director may during his employment hereunder become a member of the
Company's Pension Scheme ("the Scheme") or of any scheme set up in place
of it and will promptly pay all contributions due from him thereunder.
The Company will contribute to the Scheme an amount per year equal to
10% of the Director's salary from time to time.
5.2 The Company will pay for the provision to the Director of medical and
life insurance and Permanent Health Insurance in accordance with
arrangements made between the Company and the Director from time to
time.
MOTOR CAR
6. To assist the Director to carry out his duties hereunder the Company
will provide a motor car at a total cost within a budget purchase price
limit of Pound Sterling 21,000 (monthly rental of Pound Sterling 650)
for the Director and will pay or reimburse the Director the cost of
insurance motor car tax maintenance petrol (private and business) and
all running expenses in respect of such car.
BUSINESS EXPENSES
7. Upon production by the Director of receipts valid where appropriate, for
VAT purposes the Company shall also pay or procure to be paid to the
Director all reasonable travelling hotel and other expenses wholly
exclusively and necessarily incurred by the Director in or about the
performance of his duties hereunder including any expenses incurred in
attending Meetings of the Board or Committees of the Board or General
Meetings of the Company.
TERMINATION OF DIRECTORSHIP
8. If the employment of the Director hereunder shall be terminated by
reason of his ceasing to be a director of the Company he shall have no
claim hereunder for damages against the Company unless he shall cease to
be a director of the Company:-
(i) by reason of him not being re-elected as a director of the
Company at an Annual General Meeting of the Company; or
(ii) by virtue of a resolution passed by the Members of the Company
in General Meeting.
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SICKNESS/INCAPACITY
9.1 In the case of illness or injury of the Director or other case
incapacitating him from attending to his duties hereunder the Director
shall be paid his full salary for the period of such absence. If such
absence shall aggregate in all 180 or more working days in a period of
365 days the Company may at any time while the Director remains so
absent forthwith terminate the employment of the Director hereunder.
9.2 The Director shall notify the Company on the First working date of
absence stating the day (whether a working day or not) when he first
became sick or otherwise incapacitated. If such absence exceeds three
working days the Director shall immediately send to the Company a
self-certificate for his illness and a Doctor's Certificate for any
absence which continues for eight days or more (including non-working
days), during his continued absence the Director shall send a further
Doctor's Certificate every week.
9.3 Statutory Sick Pay ("SSP") is payable for a maximum of 28 weeks' absence
during illness or injury in respect of those days of the week on which
the Director will usually work ("qualifying days") but only becomes
payable after three qualifying days absence. The Company reserves the
right to deduct from the Director's entitlement under Clause 9.1 or from
any other monies owing to him the amount of SSP which he received or is
due to receive or to which he would otherwise have been entitled if he
had complied with his obligations under Clause 9.2 above.
9.4. The Company will notify the Director if it considers that he is not
entitled to SSP for any reason. The Company reserves the right to deduct
from the Directors entitlement under Clause 9.1 or from any other monies
owing to him the amount of any benefits received or receivable from the
Department of Social Security in these circumstances.
9.5 If the Director ceases to be eligible for SSP for any reason (for
example reaching a maximum of 28 weeks' absence, including linked
periods as defined by the Social Security and Benefits ▇▇▇ ▇▇▇▇ as
amended, totalling 28 weeks over three years from the initial period of
incapacity) then the Company will issue the Director with the relevant
transfer form at the correct time duly completed to enable the Director
to claim any benefits to which he is entitled.
9.6 If requested by the Company a final Doctor's Certificate indicating
fitness to return to work shall be supplied by the Director.
9.7 The Company shall be entitled to deduct from the Director's salary or
other payments due under this Agreement the amount of any payments made
to the Director under any health insurance scheme and/or by way of
damages or compensation for loss of income as a result of any injury or
incapacity he has suffered.
9.8 The Company may at any time require the Director to undergo a medical
examination by a doctor appointed by it for such purpose subject to the
Director's rights under the Access to Medical Reports ▇▇▇ ▇▇▇▇.
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DIRECTOR'S FIDUCIARY DUTY
10.1 For the continuance of his employment hereunder the Director shall
unless prevented by ill-health diligently devote his whole time
attention and ability to the business of the Company and shall do all in
his power to promote develop and extend the business and reputation of
the Company and any Affiliate and shall at all times and in all respects
conform to and comply with the directions and regulations made by the
Board and also shall not without the previous consent of the Company in
writing under the hand of a director duly authorised by a Resolution of
the Board:-
(i) engage in any other business; or
(ii) be concerned engaged or interested directly or indirectly in any
other business of a similar nature to or competitive with that
carried on by the Company or any of its Affiliates to which the
Director renders service hereunder PROVIDED ALWAYS that nothing
in this Clause shall preclude the Director from holding or being
otherwise interested in any shares or other securities of any
company which are for the time being quoted on any recognised
Stock Exchange so long as the interest of the Director therein
does not exceed more than three per cent of the aggregate amount
of such securities.
10.2 The Director shall comply where relevant with every rule of law and
every regulation of The London Stock Exchange including the Unlisted
Securities Market or such other market on which the shares of the
Company are dealt in and every regulation of the Company in force in
relation to dealing in shares, debentures or other securities of the
Company or of any Affiliate and unpublished price sensitive information
affecting the shares, debentures or other securities of any other
company PROVIDED ALWAYS that in relation to overseas dealings the
Director shall also comply with all laws of the state and all
regulations of the stock exchange market or dealing system in which such
dealings take place.
HOLIDAY ENTITLEMENT
11. THE Director shall (in addition to the usual public and bank holidays)
be entitled to 25 days holiday in each year to be taken at a time or
times convenient to the Company.
GIFTS ETC.
12. THE Director shall not during the continuance of this Agreement without
written consent of the Board receive any commission present or other
benefit from any person firm or company with whom the Company (and/or
any Affiliate) shall have dealings or in relation to or in consequence
of any dealings or transactions or contemplated dealings or transaction
between the Company (and/or any Affiliate) and such person firm or
company. If any person firm or company shall at any time make to the
Director an offer or promise of any such present commission or benefit
the Director will forthwith communicate the same to the Board and all
presents commissions or benefits of any kind which the Director shall
receive in breach of this clause shall be considered as having been
received by him on behalf
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of the Company and shall constitute a debt from him to the Company so
that the Company (without prejudice to any other rights it may have
against the Director in respect thereof) shall have a right to recover
the same from him by action at law.
PATENTS AND INVENTIONS
13.1 The Company and the Director acknowledge and accept the provisions of
Sections 39 and 42 of the Patents ▇▇▇ ▇▇▇▇ ("The Patents Act") relating
to the ownership of employees' inventions.
13.2 Any invention development, process, plan, design, formula,
specification, program or other matter or work whatsoever (collectively
(the Inventions") made, developed or discovered by the Director, either
alone or in concert, whilst the Director is employed by the Company
shall subject to section 39 of the Patents Act, belong to and be the
absolute property of the Company.
13.3 Any Invention made by the Director shall be forthwith disclosed to the
Company.
13.4 The Director shall deliver to the Company all documents and other
materials relating to the Inventions.
13.5 The Director shall at the request and cost of the Company (and
notwithstanding the termination of his employment) sign and execute all
such documents and do all such acts as the Company may reasonably
require to apply for and to obtain patents registered design or other
protection of any nature whatsoever in respect of any Inventions owned
by the Company and to bring any proceedings for infringement of any such
patent, registered design or other protection.
13.6 The Company shall decide in its sole discretion, whether to apply for
patent, registered design or other protection in respect of the
Inventions owned by the Company and reserves the right to work any of
such Inventions as a secret process in which event the Director shall
observe the obligations relating to confidential information which are
contained in this Agreement.
COPYRIGHT AND DESIGNS
14.1 If at any time during the continuance of his employment hereunder
(whether or not during the course of his normal duties and whether or
not during his normal working hours) the Director either alone or with
any other person originates any design formula computer program or other
work in which copyright or design right whether registered or not may
subsist (and whether or not capable of registration under the Copyright
Designs and Patents Act 1988) which is applicable to the business
carried on any time by the Company or any Affiliate he shall forthwith
disclose the same to the Company and regard himself in relation thereto
as a trustee of the Company.
14.2 The Director hereby assigns to the Company by way of future assignment
the copyright or design right (whether registered or not) if any for the
full term thereof throughout the world in any work which is the subject
of Clause 14.1 hereof
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14.3 For the avoidance of doubt the Director hereby assigns to the Company
all copyright design know-how and other intellectual property rights in
any design or work the subject of Clause 14.1 (together with the right
to ▇▇▇ for any past infringement of such rights).
14.4 The Director agrees and undertakes that he will execute such documents
and do all such things as may be necessary to protect the legitimate
property rights hereunder of the Company or any Affiliate.
14.5 The Director waives all or any moral rights in respect of any works
created by him directly or indirectly in performing his duties pursuant
to this Agreement.
CONFIDENTIAL INFORMATION
15.1 THE Director shall not directly or indirectly (except in the proper
course of his duties hereunder) either during or at any time after the
period of his employment hereunder directly or indirectly: -
(i) use for his own purposes or those of any other person company
firm business entity or other organisation whatsoever; or
(ii) disclose, divulge or allow to be divulged or disclosed to any
person firm company business entity or other organisation
whatsoever:
any confidential information or trade secret of relating to, belonging
to or concerning the Company (or/or any Affiliate) including but not
limited to the Company's (and/or any Affiliate's) business or finances
or any of its designs, know-how, formulae, inventions, processes,
dealings, transactions, affairs, details of clients, prospective
clients, customers, customer lists or requirements, price lists, pricing
structures, marketing, business plans, employees or officers, financial
information and plans, designs, product lines, research activities,
documents marked confidential or which the Director has been told are
confidential or any information which has been given to the Company
(and/or any Affiliate) in confidence by customers, suppliers or other
persons.
15.2 The Director shall not at any time during the continuance of his
employment hereunder make any drawings, notes or memoranda or other
records relating to any matter within the scope of the Company's (and/or
any Affiliate's) business, dealings or affair's otherwise than for the
benefit of the Company (and/or any Affiliate) and such items shall be
the absolute property of the Company (and/or any Affiliate as
appropriate).
15.3 The Director shall not make or communicate any statement (whether
written or oral) to any representative of the press, television radio or
other media or write any article for publication relating or connected
to the business of the Company and/or any Affiliate without obtaining
the prior written approval of the Board.
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RESTRICTIVE COVENANTS *
16.1 Subject to clause 16.3 below, the Director shall not without the
previous consent of the Company in writing under the hand of a Director,
until the expiry of 6 months after the end of his employment directly or
indirectly carry on or be engaged (including without limitation as an
academic, principal, partner, shareholder (otherwise than as permitted
by the proviso to clause 10(a)ii hereof) director, officer, employee,
consultant or adviser) in research and/or development, the management of
research and/or development, and/or the commercialisation of any
project, programme and/or work which is the same as or competing with
any project, programme and/or work which the Director was responsible
for, or engaged in on behalf of the Company and/or any Affiliates in the
last 18 months prior to the end of his employment. And, for the purposes
of this clause the word "compete" shall mean the pursuing of a research
project having a molecular target in which the Company is engaged or was
engaged during the period of 18 months prior to the end of his
employment and where such research project is conducted using the same
research route as that adopted by the Company.
16.2 Subject to clause 16.3 below, the Director shall not until the expiry of
12 months after the end of his employment solicit or otherwise seek to
persuade to leave the employment of the Company or any Affiliate any
person who is then employed as a director, manager or researcher and who
was so employed at the end of the Director's employment.
16.3 The restrictions in this clause 16 shall not apply if the Director has
been dismissed or resigned in circumstances amounting to unfair
dismissal or wrongful dismissal or has been made redundant.
TERMINATION WITHOUT NOTICE
17.1 THE employment of the Director hereunder may be terminated by the
Company without notice or payment in lieu of notice:
(i) if the Director is guilty of any gross default or misconduct in
connection with or affecting the business of the Company or any
conduct likely to bring the Company or himself into disrepute;
(ii) in the event of any breach or non-observance by the Director of
any of the stipulations herein contained:
(iii) if the Director ceases for any reason to be a director of the
Company;
(iv) if the Director becomes a patient as defined by Sections 94(2)
and 145(1) of the Mental Health ▇▇▇ ▇▇▇▇;
(v) if the Director becomes bankrupt or makes a voluntary
arrangement with his creditors as defined by the Insolvency ▇▇▇
▇▇▇▇
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* As amended by agreement made 20 November 1997
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(vi) if the Director is made subject to a disqualification order
pursuant to the Company Directors Disqualification ▇▇▇ ▇▇▇▇;
(vii) if the Director is absent from work as a result of sickness or
incapacity for the requisite period set out in Clause 9.1
hereof;
(viii) if the Director is convicted of a criminal offence which in the
reasonable opinion of the Board materially affects his position
as a Director of the Company or tends to lower the reputation of
the Company with its customers or suppliers or with the public.
(ix) if the Director becomes addicted to alcohol or drugs to an
extent which in the reasonable opinion of the Board is likely to
affect the proper performance of his duties hereunder; or
17.2 Where this Agreement is terminated in circumstances in which the
Company is otherwise obliged to give the Director due notice under
Clause 2 above the Company may, at its discretion provide the Director
with pay in lieu of such notice, or suspend him on full pay during such
notice period.
17.3 This Agreement shall if not previously terminated in any event
automatically come to an end when the Director attains the age of 65 or
such other age at which the parties mutually agree in writing he shall
retire.
17.4 In the event that the undertaking of the Company is to be transferred in
whole or part to a third part the Agreement may be terminated by the
Company upon one month's notice where the Director refuses to agree to
the transfer of this Agreement by way of notation to such third party.
RESIGNATION AS DIRECTOR
18. Upon termination of this Agreement the Director upon the request of the
Company shall resign without claim for compensation from office as
director or other officer of the Company and such directorships or other
offices held by him in any Affiliate as may be so requested and in the
event of his failure to do so forthwith upon request the Company is
hereby irrevocably authorised to appoint some person in his name and on
his behalf to sign date and deliver such resignation or resignations to
the Company and to each of the Affiliates of which the Director is at
the material time a director or other officer.
TERMINATION FOR COMPANY RECONSTRUCTION PURPOSES
19. If before the expiration of this Agreement the employment of the
Director hereunder shall be terminated by reason of the liquidation of
the Company for the purpose of reconstruction or amalgamation and the
Director shall be offered employment with any concern or undertaking
resulting from such reconstruction or amalgamation on terms and
conditions not less favourable than the terms of this Agreement or
otherwise constituting suitable alternative employment then the Director
shall have no claim against the Company in respect of the termination of
his employment hereunder.
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OTHER OBLIGATIONS ON TERMINATION
20. Upon the termination of his employment hereunder the Director shall:-
(i) forthwith deliver up to the Company all papers and other
property belonging to the Company or any Affiliate which may be
in his power possession or control and he shall not without
written consent of the Board retain any copies or other versions
thereof
(ii) if so requested by the Company send to the Company Secretary a
signed statement confirming that he has complied with
sub-paragraph (i) hereof; and
(iii) not at any time represent himself still to be connected with the
Company or any Affiliate.
SET OFF
21.1 In the event of the termination of this Agreement the Director hereby
agrees that any payment to which he may be or become entitled from the
Company under the Act be offset against any other sums for which the
Company may be liable to the Director by reason of such termination.
21.2 The Director further agrees that upon such termination the Company shall
be entitled to set off any claims against the Director against any
amounts that otherwise might be due to him under Clause 4 of this
Agreement or otherwise hereunder.
21.3 For the avoidance of doubt it is further agreed by the Director that the
Company is entitled to deduct from monies due to him hereunder the
amount of any set off claim.
HEALTH AND SAFETY AT WORK
22. The Director hereby acknowledges that he is expected to be familiar with
and to observe the provisions of the Health and Safety at Work etc. ▇▇▇
▇▇▇▇ and he further acknowledges that the responsibility for complying
with the terms of such Act rests with both the Company and its officers
and employees.
STATUTORY PARTICULARS
23. The employment of the Director hereunder shall also be subject to the
terms set out in the Second Schedule hereto which is added in accordance
with the requirements of Section 1 of the Act.
POST TERMINATION RIGHTS
24. The expiry or termination of this Agreement shall not operate to affect
any of the provisions hereof including restrictive covenants which are
expressed to operate or have effect thereafter and shall not prejudice
the exercise of any right or remedy of either party accrued beforehand.
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OBLIGATIONS TO AFFILIATES
25. The Company hereby declares itself trustees of the obligations and
covenants given in the Agreement by the Director insofar as they may be
for the benefit of any Affiliate and holds such obligations and
covenants upon trust for the absolute benefit of any such Affiliate and
the Director hereby covenants with the Company in its capacity as such
trustee to observe and perform each of the said obligations and
covenants.
NOTICES
26. Any notice required to be given or otherwise made pursuant to the terms
of this Agreement may be given or made by letter delivered by messenger
or by recorded delivery letter or by telex or by telecopier to the
Company at its registered office for the time being and to the Director
at his address stated in this Agreement or to such other address as he
may notify to the Company in writing in accordance with the terms of
this Agreement and any such notice shall be deemed to have been received
if delivered by messenger at the time of delivery by the messenger and
if by recorded delivery letter when delivery of it is recorded and if by
telex or telecopier when the notice is received at such address as
aforesaid.
COMPANY RULES INCORPORATING DISCIPLINARY AND GRIEVANCE PROCEDURES
27. THE terms of any document containing the rules disciplinary rules and
procedures and grievance and appeals procedures published from time to
time by the Company a copy of which can be obtained on demand from the
Company Secretary shall except to the extent that they are incompatible
with or are varied by the terms of this Agreement be deemed to form part
of the Director's terms and conditions of employment hereunder.
INTERPRETATION AND JURISDICTION
28. This Agreement shall in all respects be interpreted and construed in
accordance with English Law and the parties hereto hereby submit to the
non-exclusive jurisdiction of the English Courts.
In this Agreement:-
(i) unless the context otherwise requires the following expressions
shall have the following meanings:
"Affiliate" means any corporation, company, partnership, joint venture firm
and/or entity which is controlled by the Company (or any hold
company or subsidiary of the Company) or is under the common
control of the Company (or any holding company or subsidiary of
the Company) and any third party;
"the Board" means the board of Directors for the time being of the Company;
"the Act" means the Employment Protection (Consolidation) ▇▇▇ ▇▇▇▇;
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(ii) any reference to a statutory provision shall be deemed to
include a reference to any statutory modification or
re-enactment of the same. The headings herein are for
information purposes only and do not form part of this
Agreement.
SEVERANCE
30. If any provision of this agreement shall be found by any court or
administrative body of competent jurisdiction to be invalid or
unenforceable the validity or unenforceability of such provision shall
not affect the other provisions of this agreement and all provisions not
affected by such invalidity or unenforceability shall remain in full
force and effect. The parties hereby agree to attempt to substitute for
any invalid unenforceable provision a valid or enforceable provision
which achieves to the greatest extent possible the economic legal and
commercial objectives of the invalid or unenforceable provision.
IN WITNESS whereof these presents have been executed the day and year first
before written.
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THE FIRST SCHEDULE
ALTERATIONS IN SALARY
By their signatures set opposite the relevant entry in Column (1) made on the
date stated in Column (3) the parties agree that the Director's fixed salary
payable under this Agreement shall be altered to the rate stated in Column (1)
with effect from the date in Column (2)
(1) (2) (3) (4) (5)
Revised Annual rate of Signed on
Director's fixed Effective date Date of this behalf of the Signed by the
salary of alternation entry Company Director
Pound Sterling 77,500 01.10.96 03.09.96
Pound Sterling 80,000 01.10.97 03.01.97
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THE SECOND SCHEDULE
Amplification of particulars of terms of employment pursuant to the Act:-
1. Date of Commencement of Employment with the Company:
2. The period of employment with Proteus Molecular Design Limited which
commenced on 4th January 1994 counts as part of the Director's
continuous employment with the Company.
3. Hours of Work: There are no fixed hours of work - see Clause 10 of the
Agreement.
4. Holidays: see Clause 11 of the Agreement. The entitlement to holiday
(and on termination of employment to holiday pay in lieu of holiday)
accrues pro rata throughout each calendar year of employment hereunder.
5. The following information is supplied pursuant to the Act and reflects
the Company's current practice:-
(i) Disciplinary Rules: A copy of any disciplinary rules and
regulations which form part of this Contract of Employment can
be obtained by the Director on demand from the Company
Secretary. These rules may be altered or added to from time to
time by the Company and details of such changes will be
publicised on notice boards and/or supplied to the Director.
(ii) Grievance and Appeals Procedure: If the Director is dissatisfied
with any disciplinary decision relating to him or has any
complaint or grievance arising from his employment hereunder he
may refer any such matter to the Board which will deal with the
matter by discussion and by a majority decision of those present
(excluding the Director if he is so present) at the relevant
Board Meeting at which the matter is discussed.
6. A Contracting-out Certificate is in force in respect of this employment.
7. Save as otherwise provided herein or agreed between the parties in
writing from time to time there are no terms or conditions of employment
relating to hours of work, normal working hours, entitlement to holiday
(including public holidays), holiday pay, pensions or pension schemes,
or incapacity for work due to sickness or injury.
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SIGNED by
▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇
duly authorised for and on behalf of
PROTEUS INTERNATIONAL PLC
in the presence of:-
SIGNED by
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
in the presence of:-
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