EXXHIBIT 10.12
THIS AGREEMENT is made the day of 2002
B E T W E E N:
(1) SHIRE PHARMACEUTICALS GROUP PLC (registered number 2883758) a company
incorporated in and under the laws of England and Wales and having its
registered office at Hampshire International Business Park, Chineham,
Basingstoke, Hampshire, RG24 8EP (the "Company"); and
(2) DR J W TOTTEN of Sycamore House, Tile Barn, Woolton Hill, Newbury, Berks
RG20 9TF (the "Executive").
WHEREBY it is agreed that the Company shall employ the Executive and the
Executive shall serve the Company as Group Research and Development Director on
the following terms and subject to the following conditions.
1. Commencement and Term
1.1 The Executive's continuous employment with the Company commenced on 19
January 1998.
1.2 The employment of the Executive shall (subject to the provisions of
Clause 14) be terminable by either the Company or the Executive giving to
the other 12 (twelve) months' notice in writing commencing at any time.
1.3.1 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.
1.3.2 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:
(a) an amount equal to the maximum annual bonus 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
(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 Executive of
providing the benefits due for the period of notice to the
Executive pursuant to Clauses 7 and 8 of this Agreement,
in each case divided by 12 (twelve).
2. Obligations during Employment
2.1 The Executive shall during the continuance of his employment:
(a) serve the Company to the best of his ability in the capacity of
Group Research and Development Director;
(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;
(c) if and so long as the Board so directs 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;
(d) do all in his power to protect, promote, develop and extend the
business interests and reputation of the Group;
(e) at all times and in all respects conform to and comply with the
lawful and reasonable directions of the Board;
(f) 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;
(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;
(h) work at the principal place of business of the Company at
Chineham, Basingstoke, Hampshire or such other place of business
of the Company or any Associated Company within 20 miles of
Chineham 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.
2.2 If the Company subsequently requires the Executive to work permanently at
a place which is not within 20 miles of Chineham and which necessitates a
move from his then address the Company will reimburse the Executive for
all removal and associated expenses incurred as a result of the Company's
requirement.
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% per cent 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.
3.2 During the continuance of his employment the Executive shall in relation
to any dealings in securities of overseas companies comply with all laws
of any foreign state affecting dealings in the securities of such
companies and all regulations of any relevant stock exchanges on which
such dealings take place.
3.3 During the continuance of his employment the Executive:
(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");
(b) shall observe the terms of any policy issued by the Company in
relation to Gratuities; and
(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 during the continuance of his
employment a basic salary (which shall accrue from day to day) at the
rate of (pound)310,000 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). Basic salary with effect from 1 January 2003
will be (pound)340,000. 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.
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 bonus
scheme in force from time to time. Such bonus, if any, shall be subject
to a maximum on target bonus of fifty per cent (50%) of the Executive's
basic annual salary from time to time paid under Clause 4.1 above. Any
additional bonus payable on an annual basis or for such other period as
may be deemed appropriate shall be determined by the Remuneration
Committee at its sole discretion and subject to a maximum bonus of
seventy-five per cent (75%) 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.
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.
5. Incentive Schemes
If the Executive is at any time granted options pursuant to a share
option scheme of the Company, those options 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.
6. Pension Scheme
6.1 The Company shall contribute an amount equal to 25% of the Executive's
salary hereunder from time to time to such pension scheme as the
Executive shall specify.
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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.
6.2 No contracting-out certificate is in force in respect of the employment
of the Executive.
7. Insurances
Subject to his complying with and satisfying any applicable requirements
of the relevant insurers the Company shall during the continuance of his
employment:
(a) provide for the Executive and his 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;
(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 to 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;
(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
(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.
8. Other Benefits
8.1 Subject to clause 8.2 below the Company shall at the Executive's option
provide the Executive with either:
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8.1.1 a car of such make and model as the Remuneration Committee shall decide
is suitable for him/compatible with his status in the Company (provided
always that the leasing costs for such car shall not be more than
(pound)800 per month (which shall increase in line with the retail price
index during the Executive's employment hereunder) for his use and that
of his spouse (if any) during the continuance of his employment in
respect of which the Company shall pay or reimburse the Executive all
business and reasonable private petrol and the standing and running costs
together with all insurance and maintenance costs; or
8.1.2 the sum of(pound)10,560 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) (which shall increase
in line with the retail price index) 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 and the standing and running costs
together with all insurance and maintenance costs. No election may be
made under this Clause 8.1.2 where a car has been provided under Clause
8.1.1 until the expiration of the lease term of the car in question.
8.2 The Executive shall at all times and in all respects conform to and
comply with any policy which may from time to time be made by the Company
and notified in writing to the Executive in relation to cars provided by
it for the use of its employees and in particular the Executive:
(a) shall ensure that at all times when the car is driven on a public
highway it is in the state and condition required by law and that
a current MOT test certificate is in force in respect of it (if
appropriate); and
(b) shall at all times be the holder of a current driving licence
entitling him to drive motor cars in the United Kingdom and shall
produce it to the Company upon request.
8.3 Where Clause 8.1.1 applies the Company shall replace the car with another
of similar make and model at such intervals as the Remuneration Committee
may in its discretion decide.
8.4 For the avoidance of doubt the Company shall be entitled at its absolute
discretion to withdraw the use of the car provided pursuant to this
Clause in circumstances reasonably provided for in the Company's car
policy in force from time to time.
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8.5 For all purposes connected with or relating to the employment of the
Executive the benefit of the private use of the car(s) provided pursuant
to this Agreement shall be calculated in accordance with the Inland
Revenue rules in force from time to time.
8.6 The Executive shall take good care of the car and ensure that the
provisions and conditions of any insurance policy relating to it are
observed and shall return the car and its keys to the Company at its
registered office (or any other place the Company may reasonably
nominate) immediately upon the termination of his employment hereunder.
9. Expenses
The Company shall during the continuance of his employment reimburse the
Executive in respect of all reasonable travelling, accommodation and
other similar out-of-pocket expenses properly incurred by him in or about
the performance of his duties under this Agreement as approved by the
Board provided that the Executive if so required by the Company provides
reasonable evidence of any expenditure in respect of which reimbursement
is claimed.
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.
10.2 The Executive shall not be entitled to carry forward any annual holiday
entitlement not taken by him for any reason from one holiday year to the
next without the prior written consent of the Board (such consent not to
be unreasonably withheld).
10.3 Upon the termination of his employment the Executive's entitlement to
accrued holiday pay (which accrues at the rate of 2.08 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.
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.
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
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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.
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.
The Executive shall keep the Company informed of the commencement,
progress and outcome of any such claim.
12. Intellectual Property
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 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.
12.2 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"):
(a) the Executive will promptly disclose to the Company full details
of any such inventions, processes, improvements or other Works;
(b) 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;
(c) 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
(d) the Executive shall not knowingly do anything, or omit to do
anything, to imperil the validity of any patent or protection, or
any application therefor, relating to any of the Works.
12.3 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
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agrees to assign to the Company all of the Executive's right, title and
interest (including without limitation all IPRs) in the Works.
12.4 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.
12.5 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.
12.6 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.
13. Confidentiality
13.1 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 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.
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
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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.
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):
(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;
(c) customer lists and details of contacts with or requirements of
customers; and
(d) any invention, technical data, know-how, instruction or operations
manual or other manufacturing or trade secrets of the Group and
their clients/customers.
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.
14. Termination of Employment
14.1 The employment of the Executive may be terminated by the Board forthwith
without notice or payment in lieu of notice if the Executive:
(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;
(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;
(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);
(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;
(f) becomes of unsound mind or becomes a patient under the Mental
Health Act 1983;
(g) is or becomes prohibited by law from being a director; or
(h) voluntarily resigns as a director of the Company otherwise than at
the request of the Board.
14.2 The employment of the Executive shall terminate automatically and without
prior notice upon his attaining the age of 65.
14.3 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
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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); 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.
14.4 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. Executive's Covenants
15.1 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 13.3 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 15 in order to provide the Company and
its Associated Companies with what he considers to be reasonable
protection for those interests.
15.2 In this Clause 15:
(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 15 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
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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 any 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.
15.3 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.
15.4 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.
15.5 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.
15.6 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.
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15.7 The obligations imposed on the Executive by this Clause 15 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.
15.8 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 15 (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.
15.9 It is agreed between the parties that whilst the restrictions set out in
this Clause 15 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 15 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 15 valid and enforceable.
16. Change of Control
16.1 For the purposes of this Clause 16:
(a) "Relevant Event" means either:
(i) the termination by the Company of the Executive's
employment (other than for cause in accordance with Clause
14 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.
(b) Subject to Clause 16.6 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.
16.2 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 2 (two) years; and
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(b) an additional amount equal to 2 (two) times the annual bonus to
which the Executive would have been entitled pursuant to Clause 4
based on an assumed 100% on target achievement of group and
personal objectives in the year of termination of his employment.
16.3 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 16 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 Group Research and Development Director or its loss in each
case in respect of the Company or any Associated Companies.
16.4 All payments to be made pursuant to this Clause 16 shall be paid less any
necessary withholdings.
16.5 The Executive hereby agrees that he shall not, following a payment under
this Clause 16, bring any claim before any court or employment tribunal
relating to unfair dismissal.
16.6 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.
17. Disciplinary and Grievance Procedures
17.1 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.
17.2 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.
17.3 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.
17.4 If the Executive is not satisfied with any decision taken by the Chief
Executive in relation to any grievance raised by him, he may apply in
writing within 14 (fourteen) days of that decision, to the Board whose
decision shall be final.
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18. 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 14.1.
19. 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.
20. Notices
20.1 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.
20.2 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 20.1.
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21. Miscellaneous
21.1 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.
21.2 This Agreement supersedes the service agreement between the parties dated
30 December 1998 and the letter from the Company to the Executive dated
12 August 2002 which shall cease to have effect.
21.3 Any benefits provided by the Company to the Executive or his family which
are not expressly referred to in this Agreement or the Letter of Offer
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.
21.4 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.
22. Definitions and Interpretation
22.1 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
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"Remuneration Committee" means the remuneration committee of the
Board from time to time.
22.2 The headings in this Agreement are for convenience only and shall not
affect its construction or interpretation.
22.3 References in this Agreement to Clauses are references to clauses in this
Agreement.
22.4 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.
22.5 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.
22.6 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.
22.7 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.
22.8 This Agreement is governed by and shall be construed in accordance with
the laws of England and the parties to this Agreement hereby submit to
the exclusive jurisdiction of the English courts.
This Agreement supersedes all previous agreements of a similar nature between
the parties or any Associated Company.
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 PHARMACEUTICALS )
GROUP PLC acting by a )
director and its secretary/ )
two directors )
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Executed as a deed by )
DR J W TOTTEN )
in the presence of: )
Signature of witness: ................................
Name: ................................
Address: ................................
................................
................................
Occupation: ................................
Dated [ ] November 2002
(1) SHIRE PHARMACEUTICALS GROUP PLC
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(2) DR J W TOTTEN
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SERVICE AGREEMENT
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