EXHIBIT 18
DATED 22 MAY 2002
OXFORD GLYCOSCIENCES PLC
- AND -
DAVID R EBSWORTH, PH.D
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DIRECTOR'S SERVICE AGREEMENT
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1
THIS AGREEMENT is made on the 22nd day of May 2002
B E T W E E N:
Oxford GlycoSciences PLC, a company registered in England, whose registered
office is at The Forum, 86 Milton Park, Abingdon, Oxon OX14 4RY ("the Company");
and
David R Ebsworth, Ph.D, of Danziger Strasse 17, 51491 Overath, Germany ("the
Executive").
IT IS HEREBY AGREED as follows:
1 Appointment
The Company shall employ the Executive and the Executive shall serve the Company
as Chief Executive Officer on and subject to the terms and conditions specified
herein ("the Employment").
2 Commencement of Employment
2.1 The Employment commenced on 22 May 2002 ("Commencement Date") and, subject
to Clause 18 below, shall continue thereafter until terminated by not less
than 12 months' prior written notice given by the Executive to the
Company, or 12 months' prior written notice given by the Company to the
Executive.
2.2 The Executive's period of continuous employment began on 22 May 2002. No
previous employment with any other employer shall be treated as continuous
with the Employment.
3 Duties
3.1 The Executive shall be employed in the post of Chief Executive Officer in
which capacity he shall:
3.1.1 from the Commencement Date up to 1 July 2002, devote 20% of
his time, attention and skill to his duties hereunder;
3.1.2 from 1 July 2002, devote all his time, attention and skill to
his duties hereunder;
and shall faithfully and diligently perform such duties and exercise such
powers consistent therewith as may from time to time be assigned to or
vested in him by the Board or the Company. During the period referred to
in Clause 3.1.1, the Executive shall be referred to as Chief Executive
Designate.
3.2 The Executive shall obey the reasonable and lawful orders of the Board, as
consistent with this agreement, given by or with the authority of the
Board, and shall comply with all the Company's rules, regulations,
policies and procedures from time to time in force.
3.3 The Executive may be required in pursuance of his duties to perform
services not only for the Company but also for any Associated Company and,
without further remuneration (except as otherwise agreed), to accept any
such office or position in any Associated Company which is consistent with
his position with the Company, as the Board or the Company may from time
to time reasonably require. The Company may at its sole discretion assign
the Executive's
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employment to any Associated Company on the same terms and conditions as
set out herein.
3.4 The Executive's normal working hours shall be 8.30am to 5.00pm Monday to
Friday, and such additional hours (without further remuneration) as are
necessary for the proper performance of his duties of employment.
4 Exclusivity of Service
4.1 During the Employment the Executive shall not (without the prior written
consent of the Board) directly or indirectly either on his own account or
on behalf of any other person, company, business entity or other
organisation engage in or be concerned with (whether as an employee,
officer, director, agent, partner, consultant or otherwise) any other
business, or accept any other engagement or public office PROVIDED THAT
the Executive may hold up to 5% of any securities in a company which is
quoted on any recognised Stock Exchange. It is agreed that the Executive
shall be entitled to continue to maintain his current Directorships on the
Boards of SkyePharma plc and Curagen Corporation provided that the
Executive will periodically (but in any event at least annually) review
such Directorships with the Chairman to determine whether any conflict of
interest has arisen or is likely to arise or time committed to such
Directorships becomes an issue in relation to the Executive carrying out
his duties and obligations as Chief Executive Officer of the Company. If
the Chairman reasonably determines that either of such conditions exist,
the Executive agrees to step down from the relevant Directorship(s). The
Executive may only accept other Directorships with the prior consent of
the Chairman.
4.2 Subject to any written regulations issued by the Company which are
applicable to him, the Executive or his Immediate Relatives shall not be
entitled to receive or obtain directly or indirectly any discount, rebate,
commission or other benefit in respect of any business transacted (whether
or not by him) by or on behalf of the Company or any Associated Company
and if he, his Immediate Relatives or any company or business entity in
which he is interested, shall directly or indirectly obtain any such
discount, rebate, commission or other benefit he shall forthwith account
to the Company or Associated Company for the amount received or value of
the benefit so obtained. For the avoidance of doubt, this shall not
preclude the Executive from accepting reasonable corporate hospitality
offered to the Executive in the ordinary course of business provided that
the Executive notifies the Board of any hospitality so accepted, if
requested.
4.3 The Executive confirms that he has disclosed fully to the Company all
circumstances in respect of which he is aware there is, or there might be,
a conflict of interest between the Company or any Associated Company, and
the Executive or his Immediate Relatives, and he agrees to disclose fully
to the Company any such circumstances which may arise during the
Employment of which he becomes aware.
5 Remuneration
5.1 The Company shall pay to the Executive a base salary of (pound)375,000 per
annum, payable monthly in arrears by equal instalments. The Board will
review the Executive's salary annually in January and the first such
review will take place in January 2003. The Board will review the
Executive's salary for the purpose of increasing salary or nil increase,
but shall not decrease it.
5.2 The Executive shall also be entitled to receive further remuneration by
way of a bonus calculated in accordance with the rules of the bonus scheme
from time to time in force. The Company reserves the right to substitute
for the bonus scheme an alternative scheme. Payment
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of a bonus in any year shall not entitle the Executive to a bonus or to a
particular amount by way of bonus in future years.
The bonus payable to the Executive under this Clause 5.2 shall be
calculated according to the following formula:
(A x B) x C
Where:
A equals 50% of the Executive's basic salary.
B equals a percentage that shall be calculated by reference to the overall
company situation as determined by the Board in its absolute discretion,
C equals a percentage that shall be known as the bonus multiplier, the
amount of which shall be notified to the Executive following his annual
performance reviews. The amount of the bonus multiplier shall be
determined by the Company in its absolute discretion and shall be based on
the Company's judgement of the Executive's performance in achieving
performance objectives applicable to him. Details of the performance
objectives shall be notified to the Executive separately.
If the Executive's Employment is terminated, any bonus payment due for the
year of termination will be pro-rated in accordance with his length of
service in the year of termination.
5.3 For the year ended 31 December 2002, the Executive shall receive a
guaranteed bonus equal to one half of the bonus stated in Clause 5.2, pro
rated on the basis of length of full time employment served during such
period. In addition, the Executive shall be entitled to be considered for
a further bonus payment for such period in addition to the guaranteed
bonus at the discretion of the Board.
5.4 The remuneration specified in Clause 5.1 and 5.2 above shall be inclusive
of any fees to which the Executive may be entitled as a Director of the
Company or of any Associated Company.
5.5 During the period from the Commencement Date up to 1 July 2002, the
Executive's basic salary, pension entitlement and car allowance shall be
pro-rated at the level of 20% to the full-time entitlement.
6 Expenses
The Company shall reimburse to the Executive (against receipts or other
satisfactory evidence) all reasonable business expenses properly incurred and
defrayed by him in the course of the Employment, subject to the Company's rules
and policies relating to expenses.
7 Relocation and Relocation Payments
7.1 It is a condition of the Executive's employment by the Company that he
resides in Oxford or an area within reasonable commutable distance of
Oxford within a period of 6 months from 1 July 2002 (or such longer period
as may be agreed with the Chairman).
7.2 To the extent that the Executive incurs temporary housing expenses, the
Company shall reimburse such expenses to the Executive (against receipts
or other satisfactory evidence) for a
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period of 3 months.
7.3 Where relocation payments are incurred to take up employment, the Company
shall reimburse to the Executive (against receipts or other satisfactory
evidence) reasonable relocation expenses in accordance with the provisions
of IR134. The Company agrees that it will be responsible for any income
tax payable by the Executive arising on any relocation expenses reimbursed
hereunder.
8 Deductions
The Company shall be entitled at any time during the Employment, or in any event
on termination, to deduct from the Executive's remuneration hereunder any monies
due from him to the Company including but not limited to any outstanding loans,
advances, excess holiday, and any other monies owed by him to the Company.
9 Car Allowance
9.1 The Company shall pay the Executive a car allowance of(pound)1200 per
month, in arrears, less normal deductions for Tax and National Insurance.
9.2 If the Executive is absent from work on grounds of sickness or other
medical incapacity, he shall be entitled to receive his car allowance for
the same period that he is entitled to receive Company Sick Pay as set out
in Clause 11.3 below.
10 Place of Work
The Executive's place of work shall be Milton Park or any such place in the
United Kingdom as the Company shall from time to time advise him. In the
performance of his duties hereunder, the Executive may be required to travel
both throughout and outside the United Kingdom.
11 Sickness Benefits
11.1 In case of sickness or other incapacity for work, the Executive must
comply with the Company's rules, from time to time in force, regarding
sickness notification and doctor's certificates, details of which can be
obtained from the Human Resources department.
11.2 The Company reserves the right to require the Executive to undergo a
medical examination by a doctor or consultant nominated by it, in which
event the Company will bear the cost thereof.
11.3 Provided the Executive has complied with the above rules, he will be
entitled to receive Company Sick Pay, based on his normal salary for an
aggregate period of up to 6 months in any 12 month period.
11.4 When calculating the Executive's normal salary, deductions will be made
for any State sickness or other benefits due to the Executive, as well as
normal deductions for Tax and National Insurance.
11.5 The Executive will be paid Statutory Sick Pay ("SSP") when he is eligible
to receive it under the legislation and regulations from time to time in
force. Where Company Sick Pay and SSP fall to be paid for the same day(s)
of absence, the Executive will receive the higher of the two sums. Further
details about SSP can be obtained from the Human Resources department.
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11.6 Whilst absent from work on grounds of sickness or other medical incapacity
the Executive shall also be entitled to continuation of Private Medical
Insurance, Employer's Pension Contributions and Life Assurance. Permanent
Health Insurance ("PHI") cover will be made available under the terms of
the scheme from time to time in force.
12 Holidays
12.1 Subject to Clause 12.5 below, the Executive shall be entitled to receive
his normal remuneration for all Bank and Public holidays normally observed
in England and a further 22 working days' holiday in each holiday year
(the period from 1 January to 31 December). The Executive may only take
his holiday at such times as are agreed with the Chairman.
12.2 In the holiday years in which the Employment commences or terminates the
entitlement to holiday shall accrue on a pro rata basis for each month of
service. It is agreed that the Executive may take three weeks paid
vacation in August 2002.
12.3 The Company reserves the right, at its sole discretion, to require the
Executive to take all or part of any outstanding holiday during any notice
period or to make payment in lieu thereof.
12.4 Holiday entitlement for one holiday year can be taken in subsequent
holiday years, subject to a maximum of 10 days being carried over and
taken before 31 March in the following year. Failure to take accrued
holiday does not entitle the Executive to payment in lieu thereof.
12.5 The Executive shall continue to accrue holiday during the first 6 months
in aggregate of sick leave during any holiday year; but shall not accrue
holiday in respect of any periods of sick leave thereafter.
13 Other Benefits
13.1 The Executive shall be eligible to participate in the Oxford GlycoSciences
(UK) Ltd Company Pension Scheme ("the Scheme") subject to the terms and
conditions of such Scheme from time to time in force. The Executive will
receive a contribution of 8.5% of basic salary from the Company, which
shall be paid into the Scheme. Details of the Scheme can be obtained from
the Human Resources department. The Company reserves the right to
substitute another pension scheme for, such Scheme. There is a no
contracting-out certificate in force for the Employment in relation to the
State Earnings Related Pension Scheme.
13.2 The Executive shall be eligible to participate in the Company's PHI scheme
and the Executive, his wife and his children shall be eligible to
participate in the Company's medical insurance scheme, subject to the
terms and conditions of such schemes from time to time in force. Details
of the schemes can be obtained from the Human Resources department. The
Company reserves the right to terminate the schemes or substitute other
scheme(s) or amend the scale of benefits of the schemes or any substitute
scheme(s) including the level of benefits provided that the amended
benefits are materially no less advantageous.
13.3 The Company operates two share option schemes (the Oxford GlycoSciences
Executive Share Option Scheme and the Oxford GlycoSciences ShareSave
Scheme). The invitation to apply for options over shares in the Company
and the subsequent grant of options is solely at the discretion of the
Board. It is agreed that the Executive will be eligible for annual
consideration for additional share option grants at the sole discretion of
the Board.
13.4 The Executive will be granted rights over 500,000 share options under the
Oxford
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GlycoSciences Executive Share Option Scheme, full details of which will be
provided to the Executive upon the commencement of Employment, subject to
the following provisions:
13.4.1 the grant of such options is subject to the approval of the
Board of the Company;
13.4.2 the option price will be calculated as the middle market
closing price on the date that the press release announcing
the appointment of the Executive is made;
13.4.3 the grant of such options shall be conditional upon the
Executive signing an agreement confirming that he will be
responsible for any employer's National Insurance
Contributions that may arise upon the exercise of any such
options; and
13.4.4 the options to be granted will be as to 50% Tier 1 options
(being 3-year cliff vesting options with no performance
criteria) and as to 50% New Category options (being 3-year
options with no performance criteria that vest as to one third
on each of the first, second and third anniversaries of the
grant date).
14 Reasonableness of Restrictions
The Executive recognises that, whilst performing his duties for the Company, he
will have access to and come into contact with trade secrets and confidential
information belonging to the Company or to Associated Companies and will obtain
personal knowledge of and influence over its or their customers and/or
employees. The Executive therefore agrees that the restrictions contained or
referred to in Clauses 15 and 17 are reasonable and necessary to protect the
legitimate business interests of the Company and its Associated Companies both
during and after the termination of his employment.
15 Confidentiality
15.1 The Executive shall neither during the Employment (except in the proper
performance of his duties) nor at any time (without limit) after the
termination thereof, directly or indirectly
15.1.1 use for his own purposes or those of any other person,
company, business entity or other organisation whatsoever; or
15.1.2 disclose to any person, company, business entity or other
organisation whatsoever;
any trade secrets or confidential information relating or belonging to the
Company or its Associated Companies including but not limited to any such
information relating to its customers, customer lists or requirements,
price lists or pricing structures, sales and marketing information,
business plans or dealings, employees or officers, source codes and
computer systems, software, financial information and plans, designs,
formulae, prototypes, product lines, services, research activities, any
document marked `Confidential', or any information which has been given to
the Company or Associated Company in confidence by customers, suppliers or
other persons.
16 Copyright, Inventions and Patents
16.1 All records, documents, papers (including copies and summaries thereof)
and other copyright protected works made or acquired by the Executive in
the course of the Employment shall, together with all the worldwide
copyright and design rights in all such works, be and at all times remain
the absolute property of the Company.
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16.2 The Executive hereby irrevocably and unconditionally waives all rights
granted by Chapter IV of Part I of the Copyright, Designs and Patents Act
1988 that vest in him (whether before, on or after the date hereof) in
connection with his authorship of any copyright works in the course of his
employment with the Company, wherever in the world enforceable, including
without limitation the right to be identified as the author of any such
works and the right not to have any such works subjected to derogatory
treatment.
16.3 The Company and the Executive acknowledge and accept the provisions of
Sections 39 to 42 of the Patents Act 1977 ("the Act") relating to the
ownership of employees' inventions and the compensation of employees for
certain inventions respectively.
16.4 The Executive acknowledges and agrees that by virtue of the nature of his
duties and the responsibilities arising he has a special obligation to
further the interests of the Company within the meaning of Section
39(1)(b) of the Act.
16.5 Any invention, development, process, plan, design, formula, specification,
program or other matter or work whatsoever (collectively "the Inventions")
made, developed or discovered by the Executive, either alone or in
concert, during the course of the Executive's employment shall forthwith
be disclosed to the Company and subject to Section 39 of the Act shall
belong to and be the absolute property of the Company.
16.6 With respect to those rights in the Inventions which do not belong to the
Company pursuant to Clause 16.5 but which were made (wholly or partly,
either alone or in concert) using the Company's equipment, or (wholly or
partly, either alone or in concert) using information obtained during the
course of the Executive's employment, or else are Inventions which are or
maybe relevant to or related to the Company's existing or future business
(collectively "Executive Rights"), the Executive at the request and cost
of the Company (and notwithstanding the termination of his employment)
shall forthwith license or assign (as determined by the Company) to the
Company the Executive Rights and shall deliver to the Company all
documents and other materials relating to the Inventions. The Company
shall pay to the Executive such compensation for the licence or assignment
as the Company shall determine in its absolute discretion, subject to
Section 40 of the Act.
16.7 The Executive 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:
16.7.1 to apply for and obtain in the sole name of the Company alone
(unless the Company otherwise directs) patent, registered
design, or other protection of any nature whatsoever in
respect of the Inventions in any country throughout the world
and, when so obtained or vested, to renew and maintain the
same;
16.7.2 to resist any objection or opposition to obtaining, and any
petitions or applications for revocation of any such patent,
registered design or other protection; and
16.7.3 to bring any proceedings for infringement of any such patent,
registered design or other protection.
16.8 The Company shall decide, in its sole discretion, whenever to apply for
patent, registered design or other protection in respect of the Inventions
and reserves the right to work any of the Inventions as a secret process
in which event the Executive shall observe the obligations relating to
confidential information which are contained in Clause 15 of this
Agreement.
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17 Post-Termination Obligations
17.1 The Executive agrees that he will observe the post-termination obligations
set out in the Schedule hereto.
17.2 The Executive agrees that in the event of receiving from any person,
company, business entity or other organisation an offer of employment
either during the continuance of this Agreement or during the continuance
in force of any of the restrictions set out in the Schedule annexed
hereto, he will forthwith provide to such person, company, business entity
or other organisation making such an offer of employment a full and
accurate copy of this Agreement signed by the parties hereto.
18 Termination
18.1 Notwithstanding Clause 2 above, the Company may terminate the Employment
with immediate effect if the Executive shall at any time:
18.1.1 be guilty of dishonesty, or other gross misconduct, or gross
incompetence or wilful neglect of duty, or commit any other
serious breach of this Agreement; or
18.1.2 become bankrupt, apply for or have made against him a
receiving order under Section 286 Insolvency Act 1986, or have
any order made against him to reach a voluntary arrangement as
defined by Section 253 of that Act;
18.1.3 resign as a director of the Company or any Associated Company
(without the Board's written consent); or
18.1.4 be or become of unsound mind; or
18.1.5 for an aggregate period of twelve months or more in any period
of two consecutive years be incapable of performing his duties
hereunder by reason of ill health or other incapacity whether
accidental or otherwise; or
18.1.6 be convicted of an indictable offence resulting in a custodial
sentence; or
18.1.7 directly or indirectly advise or participate or act in concert
(within the meaning of the City Code on Take-Overs and
Mergers) with any person who makes or is considering making
any offer for the issued share capital of the Company, with
the exception of a recommended Management Buy-out by the Board
of Directors.
18.1.8 be or become prohibited by law from being a director.
Any delay by the Company in exercising such right to termination shall not
constitute a waiver thereof.
18.2 On termination of the Employment, the Executive shall forthwith return to
the Company in accordance with its instructions all equipment,
correspondence, records, specifications, software, models, notes, reports
and other documents and any copies thereof and any other property
belonging to the Company or its Associated Companies (including but not
limited to the Company car, keys, credit cards and passes) which are in
his possession or under his control. The Executive shall, if so required
by the Company, confirm in writing his compliance
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with his obligations under this Clause 18.2.
18.3 The Executive agrees that the Company may at its absolute discretion:
18.3.1 give to the Executive compensation in lieu of any notice of
termination of employment whether given by the Executive or
the Company, to which, for the avoidance of doubt, the
Executive shall have no entitlement unless and until the
Company notifies the Executive in writing of its decision to
make a compensation payment in lieu to him.
18.3.2 require the Executive not to attend at work and/or not to
undertake all or any of his duties hereunder during any period
of notice (whether given by the Executive or the Company)
provided always that the Company shall continue to pay the
Executive's salary and contractual benefits;
18.4 The Company shall have the right to suspend the Executive on full pay
pending any investigation into any potential dishonesty, gross misconduct
or any other circumstances which may give rise to a right to the Company
to terminate pursuant to Clauses 18.1.1 above. Such suspension shall be no
longer than is reasonably required in the circumstances.
18.5 The termination of the Employment shall be without prejudice to any right
the Company may have in respect of any breach by the Executive of any of
the provisions of this Agreement which may have occurred prior to such
termination.
18.6 In the event of termination of the Employment hereunder, however arising,
the Executive agrees that he will not at any time after such termination
represent himself as still having any connection with the Company or any
Associated Company save as a former employee for the purpose of
communicating with prospective employers or complying with any applicable
statutory requirements.
19 Directorships
19.1 The Executive shall forthwith in writing resign from all directorships,
trusteeships and other offices he may hold from time to time with the
Company or any Associated Company without compensation for loss of office
in the event of:
19.1.1 the termination of his employment; or
19.1.2 either the Company or the Executive serving on the other
notice of termination of the Employment; or
19.1.3 the Company exercising its rights under Clause 18.3.2 above.
19.2 In the event of the Executive failing to comply with his obligations under
Clause 19.1 above, he hereby irrevocably authorises the Company to appoint
some person in his name and on his behalf to sign or execute any documents
and/or do all things necessary or requisite to give effect to such
resignations as referred to in Clause 19.1 above.
20 Change of Control
20.1 In the event that the Company is the subject of a change of control as
defined in Clause 20.3 below the Executive may give written notice to the
Company within thirty days after the change of control occurring of his
intention to terminate his employment hereunder. The Executive's
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employment will then terminate three months after receipt by the Company
of the said notice and, on the termination of his employment, he will be
entitled to receive a payment (which shall be a debt and not damages and
not therefore subject to the duty to mitigate) equal to the total of:
(i) 12 months' salary at the rate in payment as at the termination
date;
(ii) the value over 12 months of any benefits provided by the
Company to the Executive (but excluding any value attributable
to participation in any share incentive schemes being operated
at the termination date by the Company);
(iii) a pro rata sum in respect of the period of service up to the
termination date in the year of termination of employment in
respect of any annual bonus for that year (if any is accrued
under any bonus scheme which may then be in operation) and
(iv) a payment in respect of the Executive's future 12 month bonus
entitlement equal to the average bonus payment made to the
Executive for the previous three years or the actual number of
years served by the Executive if less than 3 years;
(v) to the extent not covered by sub-paragraph (ii) above, a sum
equal to 8.5% of his then annual salary at the rate in payment
on the termination date, which sum relates to the equivalent
of the Executive's 12 month's future pension entitlement.
20.2 For the avoidance of doubt, no entitlements other than those specifically
mentioned in Clause 20.1 above shall be taken into account in calculating
the payment and pension benefits which the Executive shall be entitled to
receive if his employment terminates pursuant to Clause 20.1. Also for the
avoidance of doubt, the payments to which the Executive shall be entitled
pursuant to Clause 20.1 shall be in addition to any salary payable to the
Executive for any period prior to the termination date. In addition, the
said payment and pension benefits shall be:
20.2.1 provided to the Executive in full and final settlement of all
claims he has or may have arising out of the termination of
his employment;
20.2.2 conditional on the Executive entering into such further
agreements as the Company may require for the purposes of
compromising or settling any claims under employment
protection legislation.
20.3 For the purposes of Clause 20.1 above, a "change of control" shall occur
where:
20.3.1 there is a transfer of shares to any person, firm or company
(other than to an Associate of the Company as defined in the
City Code on Takeovers and Mergers) as a result of an offer
made to the general body of shareholders of the Company and
after such transfer of shares the transferee or any group of
persons acting in concert with it (as defined in the City Code
on Takeovers and Mergers) has the right to cast on a poll 50%
or more of the votes at general meetings of the Company ; or
20.3.2 substantially all of the business, assets and undertaking of
the Company becomes owned by any person, firm or company or
any group of them acting in concert, other than an Associated
Company
PROVIDED ALWAYS that a change of control shall not occur for the purposes
of this Clause by virtue of a listing of the Company's shares on a Stock
Exchange.
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21 Liquidation for Reconstruction or Amalgamation
Subject to Clause 20 above, the Executive shall have no claim against the
Company if the Employment is terminated by reason of the liquidation of the
Company for the purposes of amalgamation or reconstruction provided that he is
offered employment with any concern or undertaking resulting from such
amalgamation or reconstruction on terms and conditions which taken as a whole
are not substantially less favourable than the terms of this Agreement.
22 Grievance and Discipline
If the Executive has any grievance relating to the Employment, he should raise
it with the Board, which will deal with the matter by discussion and majority
decision of those present and voting (but without the Executive being entitled
to vote on that issue).
23 Severability
The various provisions and sub-provisions of this Agreement and the Schedule
attached hereto are severable and if any provision or sub-provision is held to
be unenforceable by any court of competent jurisdiction then such
unenforceability shall not affect the enforceability of the remaining provisions
or sub-provisions in this Agreement or Schedule.
24 Warranty
The Executive represents and warrants that he is not prevented by any agreement,
arrangement, contract, understanding, Court Order or otherwise, which in any way
directly or indirectly restricts or prohibits him from fully performing the
duties of the Employment, or any of them, in accordance with the terms and
conditions of this Agreement.
25 Notices
Any notice to be given hereunder may be delivered (a) in the case of the Company
by first class post addressed to its Registered Office for the time being and
(b) in the case of the Executive, either to him personally or by first class
post to his last known address.
Notices served by post shall be deemed served on the second business day after
the date of posting. For the purposes of this clause, "business day" means a day
on which banks are open for business in the place of both the posting and the
address of the notice.
26 Definitions
In this Agreement the following words and cognate expressions shall have the
meanings set out below:
26.1 "Associated Company" includes any firm, company, corporation or other
organisation which is: (a) directly or indirectly controlled by the
Company; (b) directly or indirectly controls the Company; (c) directly or
indirectly controlled by a third party who also directly or indirectly
controls the Company; or (d) the successor in title or assign of the
firms, companies, corporations or other organisations referred to above.
26.2 "The Board" shall mean the Board of Directors of the Company.
26.3 "Immediate Relatives" shall include wife, common law spouse, children,
brothers, sisters, cousins, aunts, uncles, parents, grandparents, and the
aforesaid relatives by marriage.
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26.4 "Termination Date" shall mean the date upon which the Executive's
employment with the Company terminates.
26.5 "Control" has the meaning ascribed by Section 416 Taxes Act 1988.
27 Construction
27.1 The provisions of the Schedule hereto and any additional terms endorsed in
writing by or on behalf of the parties hereto shall be read and construed
as part of this Agreement and shall be enforceable accordingly.
27.2 The benefit of each agreement and obligation of the Executive under Clause
15 of this Agreement and the Schedule hereto may be assigned to and
enforced by all successors and assigns for the time being of the Company
and such agreements and obligations shall operate and remain binding
notwithstanding the termination of this Agreement.
28 Prior Agreements
This Agreement cancels and is in substitution for all previous letters of
engagement, agreements and arrangements (whether oral or in writing) relating to
the subject-matter hereof between the Company and the Executive all of which
shall be deemed to have been terminated by mutual consent. This Agreement
constitutes the entire terms and conditions of the Executive's employment and no
waiver or modification thereof shall be valid unless in writing, signed by the
parties and only to the extent therein set forth.
29 Governing Law and Jurisdiction
This Agreement is governed by and construed in accordance with the laws of
England. The parties hereto submit to the exclusive jurisdiction of the English
Courts.
IN WITNESS whereof the parties hereto have executed this Agreement the day and
year first above written.
SIGNED )
for and on behalf of )
OXFORD GLYCOSCIENCES PLC ) ----------------------------------------
Name: MICHAEL KRANDA
Title: CEO
SIGNED ) David R. Ebsworth
by DAVID R EBSWORTH )
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SCHEDULE
1 Non-Competition
The Executive hereby agrees that he shall not (without the consent in writing of
the Board) for a period of 6 months immediately following the Termination Date
within either the UK or the Prohibited Area and whether on his own account or in
conjunction with or on behalf of any other person, firm, company or other
organisation, and whether as an employee, director, principal, agent, consultant
or in any other capacity in competition with the Company be directly or
indirectly (i) employed or engaged in, or (ii) perform services in respect of,
or (iii) be otherwise concerned with:
1.1 the research into, development, manufacture, supply or marketing of any
product which is of the same or similar type to any product researched, or
developed, or manufactured, or supplied, or marketed by the Company during
the 12 months immediately preceding the Termination Date;
1.2 the development or provision of any services (including but not limited to
technical and product support, or consultancy or customer services) which
are of the same or similar type to any services provided by the Company
during the 12 months immediately preceding the Termination Date;
PROVIDED ALWAYS that the provisions of this paragraph 1 shall apply only
in respect of products or services with which the Executive was either
personally concerned or for which he was responsible whilst employed by
the Company during the 12 months immediately preceding the Termination
Date.
2 Non-Solicitation of Customers
2.1 The Executive hereby agrees that he shall not for a period of 12 months
immediately following the Termination Date whether on his own behalf or in
conjunction with or on behalf of any person, company, business entity or
other organisation and whether as an employee, director, principal, agent,
consultant or in any other capacity directly or indirectly (i) solicit or,
(ii) assist in soliciting, or (iii) accept, or (iv) facilitate the
acceptance of, or (v) deal with, in competition with the Company, the
custom or business of any Customer or Prospective Customer:
2.2 with whom the Executive has had material contact or dealings on behalf of
the Company during the 12 months immediately preceding the Termination
Date; or
2.3 for whom the Executive was, in a client management capacity on behalf of
the Company, directly responsible during the 12 months immediately
preceding the Termination Date:
PROVIDED ALWAYS that the provision of this paragraph 2 shall apply only in
respect of products or services with which the Executive was either
personally concerned or for which he was responsible whilst employed by
the Company during the 12 months immediately preceding the Termination
Date.
3 Non-Solicitation of Employees
The Executive hereby agrees that he will not for a period of 12 months
immediately following the Termination Date either on his own account or in
conjunction with or on behalf of any other person, company, business entity, or
other organisation and whether as an employee, principal, agent, consultant or
in any other capacity directly or indirectly:
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3.1 (i) induce, or (ii) solicit, or (iii) entice or (iv) procure, any person
who is a Company Employee to leave the Company's or any Associated
Company's employment (as applicable) where that person is a Company
Employee on the Termination Date;
3.2 be personally involved to a material extent in (i) accepting into
employment or (ii) otherwise engaging or using the services of, any person
who is a Company Employee on the Termination Date.
4 Associated Companies
4.1 The provisions of paragraphs 4.2 and 4.3 below shall only apply in respect
of those Associated Companies (i) to whom the Executive gave his services,
or (ii) for whom he was responsible, or (iii) with whom he was otherwise
concerned, in the 12 months immediately preceding the Termination Date.
4.2 Paragraphs 1, 2, 3 and 5 in this Schedule shall apply as though references
to the "Associated Company" were substituted for references to the
"Company". The obligations undertaken by the Executive pursuant to this
Schedule shall, with respect to each Associated Company, constitute a
separate and distinct covenant and the invalidity or unenforceability of
any such covenant shall not affect the validity or enforceability of the
covenants in favour of the Company or any other Associated Company.
4.3 In relation to each Associated Company referred to in paragraphs 4.1 and
4.2 above, the Company contracts as trustee and agent for the benefit of
each such Associated Company. The Executive agrees that, if required to do
so by the Company, he will enter into covenants in the same terms as those
set out in paragraphs 1,2,3 and 5 hereof directly with all or any of such
Associated Companies, mutatis mutandis. If the Executive fails, within 7
days of receiving such a request from the Company, to sign the necessary
documents to give effect to the foregoing, the Company shall be entitled,
and is hereby irrevocably and unconditionally authorised by the Executive,
to execute all such documents as are required to give effect to the
foregoing, on his behalf.
5 Definitions
For the purposes of this Schedule, the following words and cognate expressions
shall have the meanings set out below:
5.1 "Associated Company", "Board", "Company" and "Termination Date" shall have
the meanings set out in Clause 26 of the Agreement, and shall include
their successors in title and assigns (as applicable).
5.2 "Company Employee" means any person who was employed by (i) the Company or
(ii) any Associated Company, for at least 3 months prior to and on the
Termination Date and
5.2.1 with whom the Executive had material contact or dealings in
performing his duties of his employment; or
5.2.2 who had material contact with customers or suppliers of the
Company in performing his or her duties of employment with the
Company or any Associated Company (as applicable); or
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5.2.3 who was a member of the management team of the Company or any
Associated Company (as applicable); or
5.2.4 who was a member of the Company or any Associated Company (as
applicable).
5.3 "Customer" shall mean any person, firm, company or other organisation
whatsoever to whom the Company has supplied goods or services.
5.4 "Prohibited Area" means:
5.4.1 the United Kingdom;
5.4.2 any other country in the world where, on the Termination Date,
the Company develops, sells, supplies, manufactures or
researches its products or services or where the Company is
intending within 3 months following the Termination Date to
develop, sell, supply or manufacture its products or services
and in respect of which the Executive has been responsible
(whether alone or jointly with others), concerned or active on
behalf of the Company during any part of the twelve months
immediately preceding the Termination Date.
5.5 "Prospective Customer" shall mean any person, firm, company or other
organisation with whom the Company has had any negotiations or material
discussions regarding the possible supply of goods or services by the
Company.
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