Exhibit 10.12
THIS AGREEMENT is made the 10th day of March 2004
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 9UZ (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, to be decided at the absolute discretion of the
Remuneration Committee, which may be up to the maximum target
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 with effect from 1 January 2004
a basic salary (which shall accrue from day to day) at the rate of
(pound)357,000 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). 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. Such contributions shall be made monthly at
the date when salary is paid hereunder. Such contributions shall be in
addition to the Executive's basic salary.
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6.2 No contracting-out certificate is in force in respect of the
employment of the Executive.
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. 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.
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
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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 receive such benefits (if any) as are
available to him under the terms of the Company's permanent health
insurance scheme or such greater sum (if any) as the Board may in its
absolute discretion decide.
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11.3 If any incapacity of the Executive shall be or appear to be caused by
any alleged action or wrong of a third party and the Executive shall
decide to claim damages in respect thereof, then the Executive shall
use all reasonable endeavours to recover damages for loss of earnings
over the period for which salary has been or will be paid to him by
the Company under Clause 11.1, and shall account to the Company for
any such damages recovered (in an amount not exceeding the actual
salary paid or payable to him by the Company under Clause 11.1 in
respect of the said period) less any costs borne by him in achieving
such recovery.
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 agrees to assign to the
Company all of the Executive's right, title and interest (including
without limitation all IPRs) in the Works.
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12.4 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 authorised in that behalf at the termination of his
employment or at the request of the Board at any time during the
course of his employment.
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13.3 Without prejudice to the generality of Clause 13.1 the following is,
for the avoidance of doubt, a non-exhaustive list of matters which in
relation to the Company and the Associated Companies are considered
confidential and must be treated as such by the Executive (for the
purposes of this Agreement):
(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;
(d) is convicted of an arrestable criminal offence (other than an
offence under the road traffic legislation in the United
Kingdom or elsewhere for which a non-custodial penalty is
imposed);
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(e) is adjudged bankrupt or makes any arrangement or composition
with his creditors or has an interim order made against him
pursuant to section 252 of the Insolvency Act 1986;
(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 communicating with prospective
employers or complying with any applicable statutory
requirements);
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(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
Company or any Associated Company during that period and in
respect of such customer material damage to the interests of
the Company or any
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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.
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.
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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 1 (one) year; and
(b) an amount in lieu of annual bonus to be decided at the
absolute discretion of the Remuneration Committee up to the
maximum bonus, based on 100%
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achievement of group and personal objectives for the bonus
year in which his employment terminates; and
(c) an amount in lieu of the Company's contributions to the
Executive's pension scheme under Clause 6 of this Agreement
for 1 (one) year; and
(d) an amount in respect of the actual cost to the Executive of
the provision of the benefits due under Clauses 7 and 8 of
this Agreement for the period of notice to the Executive.
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 17 December, 2002, 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 10 March 2004
(1) SHIRE PHARMACEUTICALS GROUP PLC
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(2) DR J W TOTTEN
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SERVICE AGREEMENT
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