EXHIBIT 4.1
16TH SEPTEMBER 2002
AMERSHAM PLC
PETER LOESCHER
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SERVICE AGREEMENT
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CONTENTS
CLAUSE PAGE
1. DEFINITIONS............................................................................... 2
2. TERM AND JOB DESCRIPTION.................................................................. 2
3. DUTIES.................................................................................... 3
4. SALARY.................................................................................... 3
5. INCENTIVES................................................................................ 4
6. EXPENSES.................................................................................. 4
7. COMPANY CAR............................................................................... 5
8. PENSION................................................................................... 5
9. INSURANCE................................................................................. 5
10. HOLIDAY................................................................................... 6
11. OTHER BENEFITS............................................................................ 6
12. SICKNESS AND OTHER INCAPACITY............................................................. 7
13. OTHER INTERESTS........................................................................... 7
14. SHARE DEALING AND OTHER CODES OF CONDUCT.................................................. 7
15. INTELLECTUAL PROPERTY..................................................................... 8
16. DISCIPLINARY AND GRIEVANCE PROCEDURES..................................................... 9
17. TERMINATION............................................................................... 9
18. SUSPENSION AND GARDENING LEAVE............................................................ 12
19. RESTRAINT ON ACTIVITIES OF EXECUTIVE AND CONFIDENTIALITY.................................. 13
20. POST-TERMINATION COVENANTS................................................................ 13
21. EXECUTIVE'S POSITION AS DIRECTOR.......................................................... 16
22. WAIVER OF RIGHTS.......................................................................... 16
23. DATA PROTECTION........................................................................... 16
24. EMAIL AND INTERNET USE.................................................................... 17
25. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999.............................................. 17
26. MISCELLANEOUS............................................................................. 17
THIS AGREEMENT is made on 17th September 2002
BETWEEN
(1) AMERSHAM PLC a company which has its registered office at Amersham
Place, Little Chalfont, Buckinghamshire, HP7 9NA (the COMPANY); and
(2) PETER LOESCHER whose address for service is Lovells, 65 Holborn
Viaduct, London EC1A 2DY (the EXECUTIVE)
IT IS AGREED as follows:-
1. DEFINITIONS
In this Agreement the following expressions shall have the following meanings:
BOARD means the board of directors of the Company or a duly constituted
committee of the board of directors;
EFFECTIVE DATE means to be agreed 2002;
EMPLOYMENT means the Executive's employment in accordance with the terms and
conditions of this Agreement;
GROUP COMPANY means the Company, any holding company of the Company and any
subsidiary of the Company or of any such holding company (with holding company
and subsidiary having the meanings given to them by section 736 Companies Act
1985);
RECOGNISED INVESTMENT EXCHANGE means an exchange which is the subject of a
recognition order made, or treated as having been made (under Regulation 9 of
the Financial Services and Markets Act 2000 (Recognition Requirements for
Investment Exchanges and Clearing Houses) Regulations 2001) by the Financial
Services Authority under section 290 or 292 of the Financial Services and
Markets Act 2000;
WORKING HOURS has the meaning given to it by clause 3.2.
2. TERM AND JOB DESCRIPTION
2.1 The Executive shall be employed by the Company as President Amersham
Health or in such other capacity, consistent with his status and seniority, to
which he may be lawfully assigned by the Board from time to time and shall be a
member of the Board.
2.2 The Employment shall begin on the Effective Date.
2.3 Subject to clauses 2.4 and 17, the Employment will continue until
terminated by the Company giving to the Executive 12 months' written notice or
by the Executive giving to the Company 6 months' written notice.
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2.4 The Employment will terminate automatically on the Executive's 63rd
birthday.
3. DUTIES
3.1 During the Employment, the Executive will:-
(a) diligently perform all such duties and exercise all such powers as are
lawfully and properly assigned to him from time to time by the Board,
whether such duties or powers relate to the Company or any other Group
Company;
(b) comply with all directions lawfully and properly given to him by the
Board;
(c) unless prevented by sickness, injury or other incapacity, or unless
previously agreed in writing by the Board, devote the whole of his
time, attention and abilities during his Working Hours to the business
of the Company or any other Group Company for which he is required to
perform duties;
(d) promptly provide the Board with all such information as it may require
in connection with the business or affairs of the Company and of any
other Group Company for which he is required to perform duties.
3.2 The Executive shall conform to such hours of work as may from time to
time reasonably be required of him as to be consistent with his appointment.
3.3 The Executive agrees that Regulation 4(1) of the Working Time
Regulations 1998 does not apply to him because the specific characteristics of
the activity in which he is engaged mean that the duration of his working time
is not measured or predetermined or can be determined by the Executive.
3.4 The Executive's normal place of work is the Company's principal UK
office from time to time or such other location within the UK at which the
Company may from time to time require the Executive to base himself.
3.5 The Executive agrees to travel (both within and outside the UK) as may
be required for the proper performance of his duties under the Employment.
4. SALARY
4.1 The Executive's annual basic salary is L450,000 (less any required
deductions). The salary will be reviewed annually during the Employment, with
the first review to take place in April 2003. However, no salary review will be
undertaken after notice has been given by either party to terminate the
Employment. The Company is under no obligation to increase the Executive's
salary following a salary review, but will not decrease it.
4.2 The Executive's salary will accrue on a daily basis, and will be
payable in equal monthly instalments on or about the 15th of each month.
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4.3 The Executive's salary will be inclusive of all fees and other
remuneration to which he may be or become entitled as an officer of the Company
or of any other Group Company.
5. INCENTIVES
5.1 The Executive may, in the absolute discretion of the Board, be invited
to participate in the Company's Directors' Bonus Scheme (the SCHEME). If the
Executive is invited to participate in the Scheme, the amount of any bonus will
be dependent on the rules of the Scheme and the targets set by the remuneration
committee of the Board (the REMUNERATION COMMITTEE). An amount of up to 150% of
the Executive's basic annual salary (as at the end of the Company's financial
year to which the bonus relates) shall be payable to the Executive. On target
performance in any year will produce a bonus of 100% of the Executive's basic
salary. Payments under the Scheme are non-pensionable and will be paid less any
required deductions. One third of any payment will be in the form of shares of
Amersham plc to which the Executive will become entitled over a period of up to
3 years (RESTRICTED SHARES).
5.2 The Company will pay the Executive the amount of bonus, if any, that he
would have received, but did not receive as a result of commencing employment
with the Company, from his previous employer for the period up to the Effective
Date.
5.3 The Executive may, in absolute discretion of the Board, be invited to
participate in the Company's Executive Share Option Scheme (ESOS). If, on
termination of the Employment, whether lawfully, unlawfully or in breach of
contract, the Executive loses any of the rights or benefits under any such plan
or scheme (including rights or benefits which the Executive would not have lost
had the Employment not been terminated) the Executive shall not by reasons of
this Agreement be entitled, by way of compensation for loss of office or
otherwise howsoever, to be compensated for the loss of any rights or benefits
under any such plan or scheme. If invited to participate in the ESOS, the
Executive will be eligible for the grant of options subject to and in accordance
with the rules of the ESOS.
5.4 On commencement of employment, the Executive will be awarded share
options under the ESOS with a nominal value of L1.8 million, Restricted Shares
with a nominal value of L450,000 and a payment of (euro)500,000 in cash. In
March 2003 the Executive will be awarded share options under the ESOS with a
nominal value of L0.9 million.
5.5 For the year 2002, the Company will pay the Executive, in March 2003,
the target annual bonus for which the Executive was eligible with his previous
employer, to the extent that it is not actually paid by his previous employer.
6. EXPENSES
The Company will reimburse (or procure the reimbursement of) all out-of-pocket
expenses properly and reasonably incurred by the Executive in the course of his
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Employment subject to production of receipts or other appropriate evidence of
payment.
7. COMPANY CAR
7.1 During the Employment, the Company will provide the Executive with a
car of a type and age appropriate to his status and responsibilities (with a
monthly lease value based on a 7-series BMW or Mercedes S Class or such higher
amount as agreed from time to time). The Company will bear the cost of taxing,
insuring, repairing and maintaining the car as well as the cost of petrol for
business and private mileage. The Executive will take good care of the vehicle
and will ensure that the provisions and conditions of the Company's car policy
from time to time and any policy of insurance relating to the car are complied
with in all respects.
7.2 As an alternative to 7.1 the Company may elect to pay the Executive a
car allowance of L12,000 (to be reviewed) per annum (less any required
deductions) or such higher amount as may be agreed from time to time which will
be paid in equal monthly instalments with the Executive's salary. The car
allowance will be non-pensionable.
8. PENSION
8.1 The Executive is entitled to join the Amersham plc pension scheme (the
SCHEME) subject to the terms and conditions of the trust deed and rules
governing the Scheme from time to time in force, except that the Executive's
accrual of pension shall be at the rate of 1/30th of pensionable salary per
annum, and to any Inland Revenue or other applicable limits.
8.2 The Company will contribute, for the Executive's benefit, to the
Amersham Funded Unapproved Retirement Benefit Scheme (FURBS), subject to and in
accordance with its rules and conditions (as may be amended from time to time)
or another pension arrangement of the Executive's choice subject to and in
accordance with its rules and conditions (as may be amended from time to time),
such that the Company's annual contribution for the Executive's benefit to the
Amersham FURBS or another pension arrangement of the Executive's choice (in
respect of which the Executive agrees to be responsible for all establishment
costs) will be equal to 40 per cent of the proportion of the Executive's basic
salary which exceeds the permitted maximum (as defined in section 592 of the
Income and Corporation Taxes Act 1988) in the tax year of assessment in question
(EARNINGS CAP).
8.3 A contracting-out certificate is in force in respect of the Employment.
9. INSURANCE
During the Employment, subject to the Executive satisfying such medical
requirements as the relevant insurance provider may from time to time specify
and subject to the Executive's age or health not being such as to prevent cover
being
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obtained without exceptional conditions or unusually high premiums, the Company
will:
(a) pay for the benefit of the Executive his wife and any dependent
children under the age of 21 subscriptions to the Company's private
medical expenses insurance arrangements for the time being in force;
(b) pay for the benefit of the Executive subscriptions to the Company's
permanent health insurance arrangements for the time being in force;
and
(c) pay for the benefit of the Executive subscriptions to the Company's
life assurance arrangements for the time being in force (currently, a
lump sum of four times the Executive's basic salary which exceeds the
Earnings Cap).
10. HOLIDAY
10.1 The Executive is entitled to 28 working days' paid holiday per calendar
year during his Employment (plus bank and public holidays in England), to be
taken at a time or times convenient to the Company. The right to paid holiday
will accrue pro-rata during each calendar year of the Employment.
10.2 Up to a maximum of 5 days' accrued but untaken holiday may be carried
forward to the next calendar year. Subject to clause 10.3 the Executive has no
entitlement to be paid in lieu of accrued but untaken holiday.
10.3 On termination of the Employment, the Executive's entitlement to
accrued holiday pay shall be calculated on a pro-rata basis (which calculation
shall be made on the basis that each day of paid holiday is equivalent to 1/260
of the Executive's salary). If the Executive has taken more working days' paid
holiday than his accrued entitlement, the Company is authorised to deduct the
appropriate amount from his final salary instalment (which deduction shall be
made on the basis that each day of paid holiday is equivalent to 1/260 of the
Executive's salary.
11. OTHER BENEFITS
11.1 The Company will pay for the reasonable costs incurred by the Executive
in relocating himself and his family from Tokyo to the UK.
11.2 The Company will provide accommodation in the Kensington area for the
Executive and his spouse and children. The Company will pay the Executive an
allowance of up to 69.5% of the taxable value of this benefit. The cost of any
maintenance or repairs, if not the landlord's responsibility , will be paid for
by the Company at the discretion of the Chief Executive. The company does not
pay for minor repairs or improvements to the property. The Company will pay for
any initial connection or installation charges for utilities, including
telephones, televisions and satellite dishes. It is the Executive's
responsibility to meet the cost of all oil, gas, electricity, local property
taxes and water consumed in the host location. Only the cost of business
telephone calls will be reimbursed.
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11.3 The Company will provide the necessary financial assistance towards the
cost of education for the Executive's two children. This assistance will meet
the costs of tuition and registration fees. All extras including mandatory text
books, school bussing, uniforms, sports clothing, laundry, outings, deposits,
etc. are paid for by the Executive. Children will be eligible for assistance for
fee paying day schools from the term in which they reach their fifth birthday
until completion of full-time secondary or high school education. No grants are
made for further or higher (tertiary) education. The Company will pay the
Executive an allowance of up to 69.5% of the taxable value of this benefit.
12. SICKNESS AND OTHER INCAPACITY
12.1 Subject to the Executive's compliance with the Company's policy on
notification and certification of periods of absence from work, the Executive
will continue to be paid his full salary during any period of absence from work
due to sickness, injury or other incapacity, up to a maximum of 26 weeks in
aggregate in any period of 52 consecutive weeks (the RELEVANT CONSECUTIVE
WEEKS). The Executive will be paid half his basic salary during any remaining
period of absence due to sickness, injury or other incapacity, in the Relevant
Consecutive Weeks. Such payment will be inclusive of any statutory sick pay
payable in accordance with applicable legislation in force at the time of
absence.
12.2 The Executive will not be paid during any period of absence from work
(other than due to holiday, sickness, injury or other incapacity) without the
prior permission of the Board.
12.3 The Executive agrees that he will undergo a medical examination by a
doctor appointed by the Company at any time (provided that the costs of all such
examinations are paid by the Company) at such time or times as the Company may
require. The Company will be entitled to receive a copy of any report produced
in connection with all such examinations and to discuss the contents of the
report with the doctor who produced it.
13. OTHER INTERESTS
13.1 Subject to clause 13.2, during the Employment the Executive will not
(without the Board's prior written consent) be directly or indirectly engaged,
concerned or interested in any other business activity, trade or occupation.
13.2 Notwithstanding clause 13.1, the Executive may hold for investment
purposes an interest (as defined by Schedule 13 Companies Act 1985) of up to 5
per cent in any class of securities listed or dealt in a Recognised Investment
Exchange.
14. SHARE DEALING AND OTHER CODES OF CONDUCT
The Executive will comply with all codes of conduct adopted from time to time by
the Board and with all applicable rules and regulations of the UK Listing
Authority and any other relevant regulatory bodies, including the Model Code on
dealings in securities.
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15. INTELLECTUAL PROPERTY
15.1 If the Executive (whether alone or with others) shall at any time
during the period of this Agreement make an invention (whether or not
patentable) within the meaning of the Patents Act 1977 (as amended) (hereinafter
called INVENTION) relating to or capable of being used in the business of the
Company or any other Group Company he shall promptly disclose to the Company
full details thereof to enable the Company to assess the Invention and to
determine whether under the applicable law the Invention is the property of the
Company or other Group Company.
15.2 If any Invention belongs to the Company the Executive shall consider
himself as a trustee for the Company in relation to each such Invention and
shall, at the request and expense of the Company, do all things necessary to
vest all right, title and interest in any such Invention in the Company or its
nominee absolutely as legal and beneficial owner and to secure and preserve full
patent or other appropriate forms of protection therefor in any part of the
world.
15.3 If an Invention does not belong to the Company, the Company shall have
the right to acquire for itself or its nominee the Executive's rights therein
within three (3) months after disclosure pursuant to sub-Clause 14.1 of this
Clause on fair and reasonable terms to be agreed or in default of agreement
within one (1) month to be acquired at a price to be determined by a single
expert to be nominated in default of agreement, at the request of either the
Company or the Executive, by the President for the time being of the Chartered
Institute of Patent Agents or in default by the Courts.
15.4 If the Executive (whether alone or with others) shall at any time
during the period of this agreement create or make any discovery, design or
other work (whether registrable or not and whether or not a copyright work),
which is not an Invention or made or created by the Executive and wholly
unconnected with this Agreement (hereinafter called WORKS), the Executive shall
forthwith disclose to the Company full details thereof and shall consider
himself as a trustee for the Company in relation to all such Works. The
Executive shall at the request and expense of the Company execute and do all
instruments and things necessary to vest all right, title and interest in and to
any such Works in the Company or its nominee absolutely as legal and beneficial
owner.
15.5 In consideration of the Company entering into this Agreement the
Executive hereby assigns to the Company by way of assignment of future copyright
the copyright, design and other proprietary rights if any for the full term
thereof throughout the world in respect of all copyright works created or made
by the Executive during the Employment.
15.6 If the Executive (whether alone or with others) shall at any time
during the Employment generate any idea, method of information relating to the
business, finances or affairs of the Company or capable of use by the Company or
any other Group Company which is not an Invention or Works (hereinafter called
INFORMATION) he shall promptly disclose to the Company full details thereof and
the Executive acknowledges such Information belongs to the Company.
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15.7 Rights and obligations under this clause 14 shall continue in force
after the termination of the Employment (whether lawfully, unlawfully or in
breach of contract) in respect of each Invention, Works and Information and
shall be binding upon the representatives of the Executive.
16. DISCIPLINARY AND GRIEVANCE PROCEDURES
16.1 There is no formal disciplinary procedure in relation to the
Employment. If the Executive is dissatisfied with any disciplinary decision
taken in relation to him he may appeal in writing to the Chairman of the Board
within 7 days of that decision. The Chairman's decision shall be final.
16.2 If the Executive has any grievance in relation to the Employment he may
raise it in writing with the Chief Executive and thereafter, if the Executive so
requests, the Chairman of the Board who will either propose a solution or refer
the matter to the Board.
17. TERMINATION
17.1 Either party may terminate the Employment in accordance with clause
2.3.
17.2 The Company may, in its sole discretion, also terminate the Employment
at any time by paying a sum in lieu of notice (the PAYMENT IN LIEU) equal to 95
per cent of:
(a) the basic salary which the Executive would have been entitled to
receive under this Agreement during the notice period referred to at
clause 2.3 if notice had been given (or, if notice has already been
given, during the remainder of the notice period) (the RELEVANT
PERIOD); and
(b) the Executive's pension loss in respect of the arrangements in clause
8, which will be determined as the aggregate of:
(i) in relation to loss of pension benefits under any Inland
Revenue approved pension scheme in which the Employee
participates, an amount equal to the amount certified by the
actuary to the relevant scheme as being equal to the cash
equivalent transfer value (calculated using actuarial methods
and assumptions consistent with those specified in Actuarial
Guidance Note GN11) of the additional pension benefits which
the Employee would have accrued if the Employment had
continued throughout the Relevant Period; and
(ii) in relation to loss of pension benefits under any funded
pension scheme not approved by the Inland Revenue in which the
Executive participates, an amount equal to the contributions
that would have been paid to such unapproved funded pension
scheme by the Company in respect of the Executive during the
Relevant Period.
For the purposes of this sub-paragraph PENSION BENEFITS shall also
include life assurance and spouse pension benefits.
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(c) the cost to the Company of providing all the other benefits (excluding
pension and bonus) that the Executive would have been entitled to
receive during the Relevant Period or, if the Company in its absolute
discretion decides, a sum based on an estimated cost to the Company of
providing those benefits for the Relevant Period (which, if the
Relevant Period is 12 months, is agreed to be 10% of the Executive's
basic salary (calculated by reference to the Executive's basic salary
at the date of termination)); and
(d) the average percentage of the bonus available (if any) achieved by the
Executive in respect of the three complete financial years of the
Company immediately preceding the financial year in which the
Employment terminates, multiplied by the basic annual salary of the
Executive at the date of termination of Employment. If the Employment
terminates before the expiry of three complete financial years after
the date on which the Employment commenced the payment shall be the
higher of the target bonus or the average percentage of the bonus
available (if any) achieved by the Executive in respect of the complete
financial year or years immediately preceding the financial year in
which the Employment terminates, multiplied by the basic annual salary
of the Executive at the date of termination of Employment. Where the
Relevant Period is less than one year the payment in respect of bonus
under this clause 16.2(d) shall be adjusted downwards as applicable.
The Payment in Lieu shall be subject to such deductions as may be required by
law and shall be made in full and final settlement of any claims the Executive
may have against the Company or any Group Company arising from the Employment or
the termination thereof (save any claim the Executive may have for personal
injury or in respect of any accrued pension rights). Any entitlement the
Executive may have under the ESOS shall be determined in accordance with the
rules of the ESOS.
The Executive will not be entitled to receive any payment in addition to the
Payment in Lieu in respect of any holiday entitlement that would have accrued
during the period for which the Payment in Lieu is made.
The Company shall ensure that all entitlements to basic salary and benefits
(under clauses 4, 7, 8, 9, and 10) that are accrued but unpaid as at the date of
the termination of the Employment shall be paid to the Executive. The Company
shall pay to the Executive at the same time as the Agreed Payment a bonus in
respect of the Company's financial year in which the date of termination of the
Employment occurs and in respect of the previous financial year (if not already
paid). The bonus payable under this clause 17.2 shall be determined by the
Remuneration Committee but shall not be less than the bonus for target
performance in relation to the relevant financial year (or, if not yet
determined, the previous financial year) pro-rated in respect of the part of the
year in which the termination of the Employment occurs.
The Company will continue to provide the accommodation as set out in paragraph
11.2 during the Relevant Period.
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The Company will continue to provide the necessary financial assistance towards
the cost of education as set out in paragraph 11.3 until the earlier of the end
of the school year following the termination of employment and the date of
leaving the school(s).
17.3 In the event of a change of control of Amersham plc occurring before
the Effective Date and after the Executive has resigned from his current
employment, the Executive will be entitled to receive a payment equivalent to
the Payment in Lieu detailed in 17.2, subject to the following conditions:
(i) the Executive's employment with his current employer is terminated as a
result of his resignation; and
(ii) the Executive is not offered an equivalent appointment on the Board of
the new entity resulting from the change of control of Amersham plc.
17.4 The Company may also terminate the Employment immediately and with no
liability to make any further payment to the Executive (other than in respect of
amounts accrued due at the date of termination) if the Executive:
(a) commits any serious or repeated breach of any of his obligations under
this Agreement or his Employment;
(b) is guilty of serious misconduct which, in the Board's reasonable
opinion, has damaged or may damage the business or affairs of the
Company or any other Group Company;
(c) is guilty of conduct which, in the Board's reasonable opinion, brings
or is likely to bring himself, the Company or any other Group Company
into disrepute;
(d) is convicted of a criminal offence (other than a road traffic offence
not subject to a custodial sentence);
(e) is disqualified from acting as a director of a company by order of a
competent court;
(f) is declared bankrupt or makes any arrangement with or for the benefit
of his creditors or has an interim order made against him under Part
VIII of the Insolvency Act 1986 or has a county court administration
order made against him under the County Court Act 1984.
This clause shall not restrict any other right the Company may have (whether at
common law or otherwise) to terminate the Employment summarily. Any delay by the
Company in exercising its rights under this clause shall not constitute a waiver
of those rights.
17.5 Subject to clause 17.6 below, the Company may also terminate the
Employment by giving X months' notice to the Executive if the Executive is
unable
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(whether due to sickness, injury or otherwise) properly and effectively to
perform his duties under this Agreement for a period or periods totalling 180
working days in any consecutive period of 12 months where X equals 12 minus the
number of calendar months by which the Executive's non-performance exceeds 180
days.
17.6 The Company may terminate the Employment pursuant to clause 17.5 even
when, as a result, the Executive would or may forfeit any entitlement to benefit
under the permanent health insurance arrangements.
17.7 On termination of the Employment for whatever reason (and whether in
breach of contract or otherwise) the Executive will:
(a) immediately deliver to the Company all books, documents, papers,
computer equipment and records, computer data, credit cards, his
company car together with its keys, and any other property relating to
the business of or belonging to the Company or any other Group Company
which is in his possession or under his control. The Executive is not
entitled to retain copies or reproductions of any documents, papers or
computer records relating to the business of or belonging to the
Company or any other Group Company;
(b) immediately resign from any office he holds with the Company or any
other Group Company (and from any related trusteeships) without any
compensation for loss of office. Should the Executive fail to do so he
hereby irrevocably authorises the Company to appoint some person in his
name and on his behalf to sign any documents and do any thing to give
effect to his resignation from office; and
(c) immediately pay to the Company or, as the case may be, any other Group
Company all outstanding loans or other amounts due or owed to the
Company or any Group Company. The Executive confirms that, should he
fail to do so, the Company is to be treated as authorised to deduct
from any amounts due or owed to the Executive by the Company (or any
other Group Company) a sum equal to such amounts.
17.8 The Executive will not at any time after termination of the Employment
represent himself as being in any way concerned with or interested in the
business of, or employed by, the Company or any other Group Company.
18. SUSPENSION AND GARDENING LEAVE
18.1 Where notice of termination has been served by either party whether in
accordance with clause 2.3 or otherwise, the Company shall be under no
obligation to provide work for or assign any duties to the Executive for the
whole or any part of the relevant notice period and may require him:
(a) not to attend any premises of the Company or any other Group Company;
and/or
(b) to resign with immediate effect from any offices he holds with the
Company or any other Group Company (and any related trusteeships);
and/or
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(c) to refrain from business contact with any customers, clients or
Executives of the Company or any Group Company; and/or
(d) to take any holiday which has accrued under clause 10 during any period
of suspension under this clause 18.1.
The provisions of clause 13.1 shall remain in full force and effect during any
period of suspension under this clause 18.1. The Executive will also continue to
be bound by duties of good faith and fidelity to the Company during any period
of suspension under this clause 18.1.
Any suspension under this clause 18.1 shall be on full salary and benefits (save
that the Executive shall not be entitled to earn or be paid any bonus during any
period of suspension).
18.2 The Company may suspend the Executive from the Employment during any
period in which the Company is carrying out a disciplinary investigation into
any alleged acts or defaults of the Executive. Such suspension shall be on full
salary and benefits (save that the Executive shall not be entitled to earn or be
paid any bonus during any period of suspension unless the allegations prove to
be unfounded).
19. RESTRAINT ON ACTIVITIES OF EXECUTIVE AND CONFIDENTIALITY
Save insofar as such information is already in the public domain the Executive
will keep secret and will not at any time (whether during the Employment or
after its termination howsoever arising) use for his own or another's advantage,
or reveal to any person, firm, company or organisation and shall use his best
endeavours to prevent the publication or disclosure of any information which the
Executive knows or ought reasonably to have known to be confidential, including
(without limitation) finances, results of research, scientific studies or
analysis, details of training or accounting methods, new products, sales
promotions, reports, papers and data concerning the business or affairs of the
Company or any other Group Company or any of its or their customers or
suppliers.
The restrictions in this clause shall not apply:
(a) to any disclosure or use authorised by the Board or required by law or
by the Employment; or
(b) so as to prevent the Executive from using his own personal skill in any
business in which he may be lawfully engaged after the Employment is
ended or
(c) to prevent the Executive making a protected disclosure within the
meaning of s43A of the Employment Rights Act 1996.
20. POST-TERMINATION COVENANTS
20.1 In this clause 19 the following expressions shall have the following
meanings:
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(a) PROHIBITED AREA means England, Northern Ireland, Scotland, Wales,
Belgium, Denmark, France, Germany, Greece, Italy, Ireland, Luxembourg,
Netherlands, Portugal, Spain, Switzerland, Sweden, Norway, Canada, the
United States of America, Australia, Japan and Russia;
(b) PROHIBITED BUSINESS means all or any of (a) the manufacture or supply
of life science products and services for the purpose of DNA
sequencing; drug development, and chromatography and electrophoresis
systems for DNA synthesis; (b) the manufacture or supply of radio
pharmaceutical products and services for diagnostic imaging; (c) the
manufacture or supply of sealed sources for irradiation of cancer cells
by implant radiotherapy; (d) the manufacture and supply of medical in
vivo imaging contrast media; and (e) any other business carried on by
the Company at the Termination Date and in respect of which the
Executive had executive responsibilities;
(c) PROHIBITED COMPANY means (a) Boehringer Mannheim; (b) Perkin Elmer
Applied Biosystems; (c) Life Technologies Inc; (d) Genstar; (e)
Promega; (f) Dupont Merck; (g) Syncor; (h) Schering AG; (i) Bracco; (j)
Mallinckrodt; (k) ICN; (l) Daiichi Pharmaceutical/Seiyaku; (m) Abbott;
(n) Sonus; (o) MBI; (p) ImaRx; and (q) Theragenics; (r) Sumitomo
Chemical (s) Sumitomo Pharmaceuticals and (t) any corporate body
(wherever incorporated) which is engaged or about to be engaged in the
Prohibited Business and of which at least 50 per cent of the equity
share capital (as defined in Section 736 of the Companies Act 1985) is
owned by any of the above companies (a) to (s), provided that the list
of companies named in (a) - (s) above shall be as revised from time to
time by the Company following consultation with, and notification to,
the Executive and shall be available from the Company Secretary;
(d) RESTRICTED PERIOD means the period of 12 months immediately following
the Termination Date; and
(e) TERMINATION DATE means the date on which the Employment terminates
(whether lawfully, unlawfully or in breach of contract).
20.2 Since the Executive is likely to obtain during the Employment
confidential information and knowledge of and influence over numerous customers
of the Company and Group Companies the Executive hereby agrees with the Company
(for itself and as trustee and agent for each other Group Company) that in
addition to the other terms of this Agreement and without prejudice to other
restrictions imposed upon him by law, he will be bound by the following
covenants:
(a) that he will not during the Restricted Period and within the Prohibited
Area be employed by a Prohibited Company or by any other business which
is or is about to be engaged in the Prohibited Business, in competition
with the business of the Company or any other Group Company, being
carried on by the Company or other Group Company at the Termination
Date and in which the Executive was directly concerned or connected at
any time during the last 12 months of the Employment provided that this
restriction shall not extend to
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any employment the performance of which could not involve the Executive
in such competition;
(b) that he will not during the Restricted Period and within the Prohibited
Area carry on for his own account or in partnership or for a Prohibited
Company or any other person, firm or organisation (or be concerned as a
director in any Prohibited Company or any other company engaged in) the
Prohibited Business which is or is about to be in competition with the
business of the Company or any other Group Company being carried on by
the Company or other Group Company at the Termination Date and in which
the Executive was concerned or connected at any time during the last 12
months of the Employment provided that this restriction shall not
extend to any activity the performance of which could not involve the
Executive in such competition;
(c) that he will not during the Restricted Period and within the Prohibited
Area assist a Prohibited Company with technical advice in relation to
the products or services manufactured or supplied by the Company or any
other Group Company at any time during the last 12 months of the
Employment and in respect of which the Executive had obtained
confidential information at any time during the last 12 months of the
Employment;
(d) that he will not during the Restricted Period and within the Prohibited
Area, either on his own behalf or for any other person, firm or
organisation entice or endeavour to entice away from the Company or any
other Group Company any person who is employed or engaged by the
Company or any Group Company as a director or in a managerial capacity
and with whom the Executive had business contact during at any time
during the last 12 months of the Employment;
(e) that he will not during the Restricted Period (whether on his own
account or on behalf of or in conjunction with any person, firm,
company or other undertaking) solicit or endeavour to solicit or entice
away or endeavour to entice away from the Company or any Group Company
the business of any person, firm, company or other undertaking who or
which shall have been at any time during the last 12 months of the
Employment a customer of the Company or any Group Company in relation
to the Prohibited Business and with whom the Executive has had dealings
or personal contact as part of the Employment at any time during the
last 12 months of the Employment so as to harm the goodwill of the
Company or any Group Company or so as to compete with the Company or
any Group Company;
(f) that he will not during the Restricted Period (whether on his own
account or on behalf of or in conjunction with any person, firm,
company or other undertaking) have any business dealings with any
person, firm, company or other undertaking who or which shall have been
at any time during the last 12 months of the Employment a customer of
the Company or any Group Company in relation to the Prohibited Business
and with whom the Executive has had dealings or personal contact as
part of the Employment during the last 12 months of the Employment so
as to harm the goodwill of the Company or
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any Group Company or so as to compete with the Company or any Group
Company.
20.3 The period during which the restrictions referred to in clauses 20.2(a)
to (f) inclusive shall apply following the Termination Date shall be reduced by
the amount of time during which, if at all, the Company suspends the Executive
under the provisions of clause 18.1.
21. EXECUTIVE'S POSITION AS DIRECTOR
21.1 The Executive's duties as a director of the Company or any other Group
Company are subject to the Articles of Association of the relevant company for
the time being.
22. WAIVER OF RIGHTS
22.1 If the Employment is terminated by either party and the Executive is
offered re-employment by the Company (or employment with another Group Company)
on terms no less favourable in all material respects than the terms of the
Employment under this Agreement, the Executive shall have no claim against the
Company in respect of such termination.
23. DATA PROTECTION
23.1 The Executive consents to the Company and any Group Company processing
data relating to him at any time (whether before, during or after the
Employment) for the following purposes:
(a) performing its obligations under the Agreement;
(b) the legitimate interests of the Company and any Group Company including
any sickness policy, working time policy, investigating acts or
defaults (or alleged or suspected acts or defaults) of the Executive,
security, management forecasting or planning and negotiations with the
Executive;
(c) processing in connection with any merger, sale or acquisition of a
company or business in which the Company or any Group Company is
involved or any transfer of any business in which the Executive
performs his duties; and
(d) transferring data to countries outside the European Economic Area for
the purposes of regulatory or statutory filings on behalf of the
Company or any Group Company.
23.2 The Executive explicitly consents to the Company and any Group Company
processing sensitive personal data (within the meaning of the Data Protection
Act 1998) at any time (whether before, during or after the Employment) for the
following purposes:
(a) where the sensitive personal data relates to the Executive's health,
any processing in connection with the operation of the Company's (or
any Group
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Company's) sickness policy or any relevant pension scheme or monitoring
absence;
(b) where the sensitive personal data relates to an offence committed, or
allegedly committed, by the Executive or any related proceedings,
processing for the purpose of the Company's or any Group Company's
disciplinary purposes;
(c) for all sensitive personal data, any processing in connection with any
merger, sale or acquisition of a company or business in which the
Company or any Group Company is involved or any transfer of any
business in which the Executive performs his duties; and
(d) for all sensitive personal data, any processing in the legitimate
interests of the Company or any Group Company.
24. EMAIL AND INTERNET USE
The Executive agrees to be bound by and to comply with the terms of the
Company's email and internet policy as amended from time to time.
25. CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999
A person who is not a party to this Agreement shall have no right under the
Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
26. MISCELLANEOUS
26.1 This Agreement, together with any other documents referred to in this
Agreement, constitutes the entire agreement and understanding between the
parties, and supersedes all other agreements both oral and in writing between
the Company and the Executive (other than those expressly referred to herein).
The Executive acknowledges that he has not entered into this Agreement in
reliance upon any representation, warranty or undertaking which is not set out
in this Agreement or expressly referred to in it as forming part of the
Executive's contract of employment.
26.2 The Executive represents and warrants to the Company that he will not
by reason of entering into the Employment, or by performing any duties under
this Agreement, be in breach of any terms of employment with a third party
whether express or implied or of any other obligation binding on him.
26.3 Any notice to be given under this Agreement to the Executive may be
served by being handed to him personally or by being sent by recorded delivery
first class post to him at his usual or last known address; and any notice to be
given to the Company may be served by being left at or by being sent by recorded
delivery first class post to its registered office for the time being. Any
notice served by post shall be deemed to have been served on the day (excluding
Sundays and statutory holidays) next following the date of posting and in
proving such service it shall be sufficient proof that the envelope containing
the notice was properly addressed and posted as a prepaid letter by recorded
delivery first class post.
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26.4 Any reference in this Agreement to an Act of Parliament shall be deemed
to include any statutory modification or re-enactment thereof.
26.5 This Agreement is governed by, and shall be construed in accordance
with, the laws of England.
SIGNED as a DEED and )
DELIVERED by the )
EXECUTIVE in the presence of: )
SIGNED for and on behalf of )
AMERSHAM PLC:
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