Exhibit 4.2
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| Dated 3rd
March 2004 |
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GLAXOSMITHKLINE SERVICES UNLIMITED
and
XXXX XXXXXX
SERVICE AGREEMENT
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This Agreement is made
on 3rd March 2004
between:
| (1) |
GLAXOSMITHKLINE SERVICES UNLIMITED whose registered office
is at XXX Xxxxx, Xxxxxxxxx, Xxxxxxxxx, XX0 0XX (the “Company”);
and |
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| (2) |
XXXX XXXXXX (the “Executive”). |
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1.1 |
In this Agreement (and any schedules to it) |
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“Accrued Obligations” means: |
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1.1.1 |
the Executive’s base salary under this Agreement through
to the end of the month in which the Termination Date occurs at the rate in effect
on the Termination Date and the reimbursement (in accordance with Group policy)
of any expenses incurred by the Executive prior to the Termination Date; |
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1.1.2 |
any unpaid bonus pertaining to the previous financial year and
the product of any target bonus for the financial year in which the Termination
Date occurs and a fraction, the numerator of which is the number of days in the
Company’s current financial year up to the Termination Date and the denominator
of which is 365; |
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1.1.3 |
any remuneration previously deferred by the Executive (together with any accrued
interest) and not yet paid by the Company including payment for any accrued
holiday not taken by the Executive; and |
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1.1.4 |
any other benefits to which the Executive is entitled, as determined in accordance
with the applicable plans and policies of the Company; |
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“Board” means
the board of directors of the Company from time to time or any person or
committee nominated by that board as its representative for the purposes
of this Agreement; |
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“Chief Executive Officer” means
the Chief Executive Officer of GSK plc from time to time; |
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“Employment” means
the employment governed by this Agreement; |
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“Group” means
the Company and any other Company controlling, controlled by or under the
direct or indirect common control of the Company, including, without limitation,
GSK plc and any of its subsidiaries from time to time; |
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“Group Company” means
a member of the Group and “Group Companies” will be interpreted
accordingly; |
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“GSK Board” means
the board of directors of GSK plc from time to time or any person or committee
nominated by the Board as its representative for the purposes of this Agreement; |
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“Termination Date” means
the date on which the Employment terminates, whether on the expiration of
notice to terminate the Employment pursuant to Section 3 or otherwise pursuant
to this Agreement; |
– 1 –
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| 1.2 |
References to any statutory provisions include any modifications or re-enactments
of those provisions. |
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| 1.3 |
In this Agreement terms used in the context of the GlaxoSmithKline Share Option
Plan and Performance Share Plan shall have the meaning ascribed to them in
such plans. |
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The Company confirms the employment of the Executive, and the Executive confirms his employment with the Company, on the terms and conditions set out in this Agreement. |
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| 3.1 |
The Executive’s continuous employment began on 1st April 1986. |
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| 3.2 |
The Employment under the terms of this Agreement shall be deemed to have commenced
on 1st January 2004 and the Employment shall continue until: |
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(i) |
the Employment is otherwise terminated in accordance with this Agreement; or |
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(ii) |
not less than 12 calendar months’ notice in writing is given
by the Company to the Executive; or |
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(iii) |
not less than 12 calendar months’ notice in writing is given
by the Executive to the Company. |
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| 3.3 |
The Company may, in its absolute discretion, lawfully terminate
the employment of the Executive at any time by paying to the Executive the Lump
Sum set out in Section 16.1.5. The Executive shall also receive within 14 days
of the Termination Date confirmation from the Trustees of the Glaxo Wellcome
Pension Scheme that his pension entitlement has been augmented by an amount equal
in value to the amount of pension which would have accrued to the Executive in
the entire period of notice (except for any part of it attributable to the period
falling after the Executive’s Retirement Date and subject to deduction
of tax and any other deductions required to be made), assuming that the rate
of salary applicable for pension calculation purposes had remained the same as
at the Termination Date throughout the period of notice. For this purpose, salary
shall be the basic salary in effect at the date of termination of the employment
and bonus shall be calculated on the basis of the Executive achieving 100 per
cent of the target bonus at Bonus level 1. |
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| 4 |
Duties and Responsibilities |
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| 4.1 |
The Executive is the Chief Financial Officer of GSK plc. This position is classified
as grade Band A, tranche 2. The Executive shall have such powers and duties
as are from time to time given to him by the Chief Executive Officer or,
if different, the person to whom the Executive reports, consistent with the
Employment and this Agreement. The Executive agrees that for the purposes
of the Working Time Regulations 1998 he is a managing executive. |
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| 4.2 |
During the Employment, the Executive shall devote his full business
time and energies to the business and affairs of the Company and GSK plc, consistent
with any other duties and responsibilities he may have to any Group Companies.
The Executive’s time shall be allocated among the Group Companies in accordance with the Executive’s
reasonable judgment and dependent upon the level of his responsibilities to any
other Group Company, subject to the overall supervision and direction of the
Chief Executive Officer or, if different, the person to whom the Executive reports. |
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| 4.3 |
The Executive shall not, without the prior written consent of the GSK Board, accept directorships, trusteeships and other appointments (other than of Group Companies) or carry on or be engaged, concerned or interested either directly or indirectly in any other business or activity. A list of the directorships and outside interests of the Executive approved by the GSK Board as at the date of this Agreement is attached as Appendix I to this Agreement. Any fees earned by the Executive in respect of such authorised activities may be retained by the Executive. |
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| 4.4 |
The location of the Executive’s activities shall be at GSK House, but subject to the overall supervision and direction of the Chief Executive Officer, and to perform properly his duties, he may be required to undertake reasonable travel elsewhere in the world. The Executive is required to reside at a location convenient to the Company’s
offices at GSK House (or such other location as the Company may determine)
during the Employment. |
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| 5.1 |
In consideration of the services to be rendered by the Executive
under this Agreement the Executive shall be paid a salary at the rate of £495,000 per annum payable in accordance with the Company’s pay practices for its executives from time to time in force (but not less frequently than calendar monthly). The salary will be credited to the Executive’s bank account notified to the Company for the purpose. Salary shall be reviewed annually in accordance with the Company’s
normal administrative practices for its executives and may be increased (but
not reduced) by the Company by such amount (if any) as it shall think fit. |
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| 5.2 |
The Executive shall be entitled subject to Section 6.4 to participate |
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(i) |
in all such cash bonus plans and programmes as are made available
from time to time for executives of the Company generally of the same grade in
the relevant jurisdiction in accordance with the Company’s policy (or GSK plc’s
policy, as applicable); and |
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(ii) |
in respect of the salary provided by Section 5.1, in such incentive programmes
as are made available from time to time for executives of the Company and/or
GSK plc generally who are of the same grade in the relevant jurisdiction, |
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in each case subject to the terms and conditions of such bonus plans and programmes from time to time in force. Any grant of share options or awards of performance shares under such plans and programmes shall be granted subject to performance conditions determined at the discretion of the GSK Board. Any shares received under the Performance Share Plan concerning Target Awards granted in respect of any Performance Period commencing on or after 1st January
2004 must be held by the Executive for a period of 2 years following vesting.
For the avoidance of doubt, the two year period commences the day next after
the cessation of the Performance Period, notwithstanding that the Executive
may defer payment of any Final Award in accordance with the rules of the
plan. The Executive’s future participation in certain of these plans and programmes may be affected if the Executive does not satisfy the Share Ownership Requirements (as amended from time to time). It is agreed that the Executive will retain the relevant number of shares (as set out in the Share Ownership Requirements) until at least one year after (i) the date upon which the Executive retires from the Company in accordance with the terms of any Company policy (as may be in force from time to time ) or, (ii) the Executive’s
retirement on the Retirement Date contemplated by Section 14 of this Agreement. |
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| 5.3 |
The Executive’s salary under Section 5.1 of this Agreement
shall be inclusive of any fees or other remuneration to which the Executive may
be entitled or receives as a Director, alternate Director, specialist adviser,
consultant or by virtue of any other office or appointment in any Group company.
The Executive shall account to the Company for all such fees or other remuneration
by paying over or procuring to be paid over the same to the Company. |
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| 5.4 |
The Executive authorises the Company at any time to deduct from his salary, or
any other monies payable to him by the Company, all sums which he owes the
Company. If this is insufficient, the Company will require repayment of the
balance. |
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| 6 |
Expenses and other Benefits |
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| 6.1 |
The Company shall promptly reimburse to the Executive all reasonable travel and
other out of pocket expenses properly incurred by him in the performance
of his duties under the Employment. The Executive will submit claims for
expenses reimbursement to the Company regularly with appropriate supporting
documentation. |
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| 6.2 |
The medical benefit arrangements for the Executive are as set out in the GlaxoSmithKline
Executive Medical Plan (as amended from time to time). Details, including
eligibility criteria, are set out in the TotalReward section on myGSK. In the event that the Executive ceases to be employed by the Company for reasons other than termination for cause or resignation, then the Executive will be entitled to continue to enjoy medical insurance benefit (including dental treatment) in perpetuity in accordance with the rules of the GlaxoSmithKline Executive Medical Plan or its successor plans provided that in no circumstances will the scope or substance of the medical insurance benefit be less favourable than the medical insurance benefit coverage in place as at
12th December 2003. |
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| 6.3 |
The Company at its expense shall provide the Executive with other benefits provided
to executives of the Company of the same grade, and the Executive shall be
entitled to participate in all benefit plans, practices and policies as are
made available by the Company from time to time to its executives generally
of the same grade subject to their terms and conditions from time to time
in force. A list of all plans and programmes currently in operation is set
out in Appendix 2. Details of the relevant plans and programmes are set out
in the TotalReward section on myGSK. |
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| 6.4 |
The Company (and GSK plc, as applicable) reserves the absolute right and discretion
to amend, modify or terminate all such benefits, plans and programmes as
are referred to in Sections 5.2, 6.3 and 8.1 at any time and for any reason. |
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In addition to all statutory
and Bank Holidays, the Executive shall be entitled to 28 days’ holiday
in each year at full pay in accordance with Company policy from time to time
in force which shall accrue rateably during the calendar year. Up to four
days of such holiday shall be taken at times to be designated by the Company
and the remainder shall be taken at such times as the business of the Company
may permit. On termination of the Employment the Executive will be entitled
to be paid for any accrued holiday not taken and will reimburse the Company
for any holiday taken but not accrued. |
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Holiday which is not taken
in the year in which it is accrued may be carried forward, in accordance
with the Company’s rules on the banking of holidays outlined in its
Holiday Policy, as amended from time to time. Any holiday which is not banked
in accordance with these rules will be lost. |
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| 8 |
Pension and Life Insurance |
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| 8.1 |
The Company shall procure that the pension payable to or in respect of the Executive
if he retires from employment at the age of 60 shall be two-thirds of his
then salary under Section 5.1 of this Agreement (as increased from time to
time), and subject thereto his benefits shall be those which he would have
received if he were a member of the Executive section of the GSK Pension
Scheme not subject to Inland Revenue limits. In addition, the Executive shall
receive the 5% increase in pension built up to 31st March
2000 under the terms of the GSK Pension Scheme. The pension receivable shall
be taken to accrue uniformly over the Executive’s period of potential service
from starting employment with the Company until the end of the month in which
he
attains the age of 60. |
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| 8.2 |
Accordingly, if he should leave the Company’s employment before the age of 60, the pension payable to the Executive from retirement at the end of the month in which he attains the age of 60 shall bear the same relationship to the pension which he would have received if he had been in employment until age sixty as his actual service with the Company bears to his potential service with the Company. The Company’s
obligation under this Section is conditional upon the Executive remaining a member
of the GSK Pension Scheme throughout his employment. |
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| 8.3 |
The pension payable under the terms of this Section shall be provided under the
provisions of the Executive Section of the GSK Pension Scheme. If the application
of Inland Revenue limits under the GSK Pension Scheme prevents the full entitlement
to pension under this Section being provided under the terms of the GSK Pension
Scheme, any shortfall (other than in respect of the 5% increase referred
to in Section 8.1 above) will be provided on the same terms from the GSK
Executive Top-Up Scheme. |
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| 9.1 |
The Executive shall comply with the Company’s sick pay rules
from time to time in force. |
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| 9.2 |
Without prejudice to the Company’s right to terminate the Employment in accordance with Sections 3, 13, 15 and 16 and to automatic termination in accordance with Section 14, if the Executive is absent from the Employment as a result of sickness or injury he shall be paid his full salary for the first 26 weeks’ absence
(whether or not consecutive) and half of his salary for the second 26 weeks (whether
or not consecutive) in aggregate in any period of 24 calendar months. The amount
of any benefit which the Executive is entitled to claim during that period of
absence under any Social Security or National Insurance Scheme and/or any Scheme
of which the Executive is a non-contributory member by virtue of the Employment,
will be deducted from any salary paid to him. The Company will pay the Executive
statutory sick pay under the Social Security Contributions and Benefits Act 1992
(as amended) and any salary paid to him will be deemed to include statutory sick
pay. The Company reserves the right to offset the amount of these benefits against
salary paid to the Executive even if the Executive has not recovered them. |
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| 9.3 |
The Company may require the
Executive to have a medical examination every year (or at such shorter intervals
as they may agree between them), by a doctor approved by the Company. The
costs of such examinations shall be borne by the Company. The Executive shall
authorise such doctor to submit to the Director of Human Resources of the
Company a copy of the medical report or results of any tests prepared or
obtained as a result of that examination (which shall omit reference to any
medical condition which in the doctor’s opinion would not affect the Executive’s
capability to perform his duties then or in the future). |
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| 10 |
Inventions and Copyright |
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The Company’s standard
policy on inventions and copyright from time to time in force shall apply
to the Executive. |
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| 11 |
Confidentiality; Company Securities |
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| 11.1 |
Without prejudice to any other duty owed to the Company or to any Group Company,
the Executive shall not, except in the proper performance of his duties or
as authorised by the Board, during or after the Employment, use or disclose
to any person any Confidential Information obtained by him during the Employment. |
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| 11.2 |
In the course of the Employment, the Executive is likely to obtain trade secrets
and confidential information belonging to or relating to Group Companies
and other persons. He will treat such information as if it falls within the
terms of Section 11.1 and Section 11.1 will apply with any necessary amendments,
to such information. If requested to do so by the Company, the Executive
will enter into an agreement with other Group Companies and any other persons
in the same terms as Section 11.1 with any amendments necessary to give effect
to this provision. |
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| 11.3 |
For the purposes of this Agreement, the term “Confidential
Information” shall include, but not be limited to confidential commercial, financial and strategic data pertaining to the Group and any other confidential information relating to the business or affairs of the Group including, without limitation, any invention, trade secret, manufacturing process or patent information. The term “Confidential
Information” shall not include any information: |
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11.3.1 |
which is or becomes generally available to the public, or |
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11.3.2 |
which is acquired by the Executive apart from his association with the Group |
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other than, in each case, as a result of disclosure by the Executive or by any person to whom he has supplied information or by any person in breach of a duty of confidentiality. |
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In addition, the term “Confidential
Information” shall not include any information which the Executive is required to disclose by applicable law or regulation or by order of a court or governmental body of competent jurisdiction, so long as the Executive gives the Chief Executive Officer of the Company reasonable prior notice of such required disclosure. This does not affect any rights the Executive has under Part IVA of the Employment Rights Xxx 0000. |
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| 11.4 |
During the Employment, the Executive shall be bound, in respect
of transactions in securities issued by any Group Company, by the Company’s and GSK plc’s
policies from time to time in effect on employee securities dealing. In particular,
the Executive shall advise the Company Secretary, CEO or Chairman of GSK plc
before he or any member of his immediate family seeks to trade in such securities
and shall be bound by any directions given by the Company Secretary, CEO or Chairman. |
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| 12 |
General Termination Provisions |
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| 12.1 |
On the termination of the Employment for whatever reason, or at any other time
when requested to do so by the Company, the Executive, upon receipt of written
request from the Company, shall promptly |
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(i) |
deliver up to the Company any property belonging to the Company or any other
Group Company which may be in his possession or under his control including
Confidential Information, lists of customers, correspondence, documents
and other property. The Executive will not retain any copies of any materials
or other information. The Company shall promptly return to the Executive
and permit him to remove from the premises of the Company and any other
Group Company, any property, personal records, files, etc. belonging to
the Executive; and |
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(ii) |
resign on request by the Company or the GSK Board (if he has
not already done so) from all offices held by him in the Company and any other
Group Company (except for any he is entitled to retain under any separate agreement
with any Group Company), failing which the Executive irrevocably authorises the
Company or GSK plc to appoint an officer of the Company or GSK plc to execute
all documents on his behalf and do all things necessary to effect such resignations;
PROVIDED, however, that any such resignations pursuant to this Section 12.1(ii)
shall be without prejudice to the Executive’s rights under this Agreement. |
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| 12.2 |
Any termination of the Employment shall be without prejudice to
the Executive’s and the Company’s continuing obligations under this
Agreement. |
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| 12.3 |
Upon the termination of the Executive’s employment for whatever
reason, the Executive shall immediately repay all outstanding debts or loans
due to the Company or any Group Company and the Company is hereby authorised
to deduct from any payment of wages any sum in repayment of all or any part of
such debts or loans. |
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| 12.4 |
The terms of the GSK Redundancy Policy as in force from time to time shall not
apply to the Executive who shall only be entitled to statutory redundancy
pay in addition to any other entitlement under this Agreement if his Employment
is terminated by reason of redundancy. |
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| 13 |
Termination due to Death or Disability |
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| 13.1 |
In the event of the Executive’s death the Employment will
terminate automatically on the date of his death, which shall be the Termination
Date for the purposes of this Agreement. His duly qualified executor shall be
entitled to receive the Accrued Obligations. |
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| 13.2 |
The Company may elect to terminate the Employment immediately without notice
or payment in lieu of notice by serving written notice (“Termination
Notice for Disability”), if an independent physician selected by the
Company has certified in writing that, by reason of a physical or mental illness
or other condition of the Executive, the Executive is unlikely to be able to
resume performance of duties under the Employment for the foreseeable future.
The Employment will terminate on the Termination Date specified in the Termination
Notice for Disability. Provided that the Company shall not be entitled to terminate
the employment by reason of physical or mental illness or other condition if
this would lead to the Executive becoming dis-entitled to benefits under the
Company’s or GSK plc’s permanent health insurance plan. |
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| 13.3 |
In the event the Company delivers a Termination Notice for Disability, the Executive shall immediately be relieved from all offices, appointments and responsibilities that he may then hold under the Employment and be relieved of any duty to work for or serve the Company or any Group Company. The Executive shall be entitled only to the Accrued Obligations, together with such rights as are provided for in the applicable benefits plan(s) in which the Executive participates. |
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| 14 |
Termination on Retirement |
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The Employment shall automatically terminate on the last day of the month in which the Executive reaches his sixtieth (60th) birthday (the “Retirement
Date”) and the Executive shall thereafter be entitled only to payment of the Accrued Obligations. |
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| 15.1 |
The Company shall be entitled to terminate the Employment immediately without
notice or payment in lieu of notice for Cause (as defined in this Section)
by serving written notice (“Notice
of Termination for Cause”). |
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15.2.1 |
the Executive is convicted of any criminal offence which in the
reasonable opinion of the Chairman of GSK plc or the GSK Board affects the Executive’s
position as Chief Financial Officer of GSK plc (other than a motoring offence
for which no custodial sentence is given to him); or |
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15.2.2 |
the Executive, in carrying out his duties under the Employment, is found guilty
of gross neglect or gross misconduct; or |
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15.2.3 |
the Executive shall become bankrupt or have an order under Section 252 of the
Insolvency Xxx 0000 made in respect of him or if an interim receiver of his
property is appointed under Section 286 of the Act; or |
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15.2.4 |
the Executive shall be or become prohibited by law from being a director; or |
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15.2.5 |
the Executive commits a material breach of any term of this Agreement. |
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| 15.3 |
Any delay or forbearance by the Company in exercising any right of termination
shall not constitute a waiver of it. |
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| 15.4 |
In the event that the Employment is terminated for Cause, the Employment shall
terminate upon the date on which the Board serves Notice of Termination for
Cause and the Executive shall be entitled only to payment of all previously
accrued and unpaid salary then due and owing under this Agreement, up to
the date of termination including reimbursement for expenses previously incurred
and, save for the provisions of this Section 15.4, the Executive will have
no claim for damages or any other remedy against the Company or any Group
Company. |
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| 16.1 |
If either notice to terminate the Employment is given by the Executive according
to Section 3.2(iii) above, or if the Executive resigns without giving due
notice and the Company does not accept his resignation or the Company has
given notice in accordance with Section 3.2(ii) above then the Company may
require the Executive to comply with any and all of the provisions in this
Section 16.1 for a maximum period of 12 months (the “Garden
Leave Period”). |
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16.1.1 |
The Company may require that the Executive does not: |
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(i) |
enter or attend the premises of the Company, or any Group Company; or |
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(ii) |
contact or have any communication with any customer or client of the Company,
or any Group Company in relation to the business of the Company, or any Group
Company; or |
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(iii) |
contact or have any communication with any employee, officer, director, agent
or consultant of the Company, or any Group Company in relation to the business
of the Company, or any Group Company; or |
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(iv) |
become employed or engaged by any company, partnership or other entity whether
as an employee, director, partner or consultant or carry on any business
either on his own account or for any other person whether directly or indirectly
(except as the holder, directly or indirectly, of less than 5 per cent of
the shares or save for those activities permitted in accordance with Section
4.3); |
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(v) |
remain or become involved in any aspect of the business of the Company, or any
Group Company except as required by such companies. |
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16.1.2 |
The Company may require the Executive: |
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(i) |
to comply with the provisions of Section 12; and |
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(ii) |
to immediately resign from any directorship which he holds in the Company, and
any Group Company or any other company where such directorship is held as
a consequence or requirement of the Employment, unless he is required to
perform duties to which any such directorship relates in which case he may
retain such directorships while those duties are ongoing. The Executive hereby
irrevocably appoints the Company to appoint an officer of GSK plc as his
attorney to execute any instrument and do anything in his name and on his
behalf to effect his resignation if he fails to do so in accordance with
this Section 16.1.2(ii). |
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16.1.3 |
During any Garden Leave Period the Company may appoint another individual to
carry out the duties of the Executive and the Executive shall: |
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(i) |
continue to be bound by the provisions of this Agreement and conduct himself
with good faith towards the Company and not do anything that is harmful to
the Company or any Group Company; |
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(ii) |
remain available to perform any reasonable duty requested by the Company or any
Group Company and to co-operate generally with the Company or any Group Company
to ensure a smooth handover of his duties (provided that if the Executive
should fail to make himself available for such work having been requested
by the Company or any Group Company to attend he shall, notwithstanding any
other provision of this Agreement forfeit his right to salary and contractual
benefits in respect of such period of non-availability). |
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16.1.4 |
During the Garden Leave Period, the Executive will be entitled to receive his
salary and benefits in accordance with the terms of this Agreement including
any bonus payable in accordance with Section 5.2 but excluding any share
entitlements under Section 5.2 above. |
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16.1.5 |
Where the Company gives notice to terminate the Employment in
accordance with Section 3.2 (except where termination is affected pursuant to
the terms of Section 15) above then notwithstanding the continuation of the Employment
during any period after notice has been given, including any Garden Leave Period,
within 30 days of the date such notice was given to the Executive, the Company
shall pay to the Executive as a lump sum his full salary and bonus and a cash
payment equal to the value of his benefits ( excluding pension benefits) in respect
of the entire period of notice (except for any part of it attributable to the
period falling after the Executive’s Retirement Date and subject to deduction
of tax and any other deductions required to be made) (the “Lump Sum”).
For this purpose, full salary shall be the basic salary in effect at the date
such notice is given to the Executive, and bonus shall be calculated on the basis
of the Executive achieving 100 per cent of the target bonus at Bonus Level 1.
For the avoidance of doubt, the payment by the Company to the Executive of the
Lump Sum will extinguish any and all liability imposed on the Company under this
Agreement to make any further payment to the Executive in respect of salary and
bonus under this Agreement during any period after notice has been given, including,
any Garden Leave Period. The Executive shall also receive within 14 days of the
Termination Date confirmation from the Trustees of the Glaxo Wellcome Pension
Scheme that his pension entitlement has been augmented by an amount equal in
value to the amount of pension which would have accrued to the Executive in the
entire period of notice (except for any part of it attributable to the period
falling after the Executive’s Retirement Date and subject to deduction
of tax and any other deductions required to be made), assuming that the rate
of salary applicable for pension calculation purposes had remained the same as
at the Termination Date throughout the period of notice. |
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16.1.6 |
After the payment of a Lump Sum pursuant to Section 16.1.5, at the end of or
at any time during the Garden Leave Period the Company may at its sole and
absolute discretion terminate the Employment by further written notice to
the Executive without any further payment. In any event at the end of the
12 month Garden Leave Period the Employment will also terminate automatically
and the Company shall be under no obligation to make any further payment
to the Executive, save for in respect of any Accrued Obligations that may
exist. |
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16.1.7 |
However, in the event that the Executive obtains an offer of future
alternative employment with another employer, or otherwise wishes to take up
alternative business activities, and he can satisfy GSK plc that such employment/activities
are not in breach of Section 17, the Company may at its discretion waive the
balance of any unexpired notice period or the Garden Leave Period so as to enable
the Executive to take up such alternative employment/activities; whereupon, subject
to Section 12.3 above, the Company’s obligations to the Executive under
this Section 16.1 shall cease with effect from the agreed revised Termination
Date. |
| |
|
|
16.1.8 |
The Company and the Executive agree that if the Company shall fully perform,
when due, all its obligations under this Section 16, such performance shall
be in full and final settlement of all and any claims or rights of action
which the Executive might have against the Company, or any Group Company
arising out of this Agreement or its termination or otherwise howsoever relating
to the Employment. |
– 10 –
| 17 |
Restrictions during and after Termination of Employment |
| |
|
| |
“Restricted Business” means
the businesses of the Company or any Group Company at the Termination Date
(or if earlier the start of any Garden Leave Period ending on the Termination
Date) with which the Executive was involved to a material extent during the
last 12 months of the Employment. |
| |
|
| |
“Restricted Period” means
any period during which the Executive is employed by the Company (including
for the avoidance of doubt, any Garden Leave Period) and the period of 12
months less any Garden Leave Period imposed by the Company under Section
16 commencing on the Termination Date. |
| |
|
|
| 17.2 |
The Executive is likely to obtain trade secrets and confidential information
and personal knowledge of and influence over customers, clients and employees
of the Company, GSK plc and its Group Companies during the course of the
Employment. To protect these interests, the Executive agrees with the Company
and GSK plc that the Executive will be bound by the following covenants: |
| |
| |
17.2.1 |
During the Restricted Period he will not be engaged in (except as the holder,
directly or indirectly, of less than 5 per cent of the shares) any business
which is or is about to be in competition with the Restricted Business. |
| |
| |
17.2.2 |
During the Restricted Period the Executive will not, canvass or solicit in competition
with the Company, or any Group Company the custom of any person who was during
the last 12 months of the Employment a customer, or client of, or in the
habit of dealing with, the Company, or (as the case may be) any Group Company
and in respect of which the Executive had access to confidential information
or with whose custom or business the Executive is or was personally concerned,
during that 12 month period with a view to providing goods or services to
that person in competition with any Restricted Business. |
| |
| |
17.2.3 |
During the Restricted Period he will not, in the course of any business concern
which is in competition with the Restricted Business provide goods or services
to or otherwise have any dealings with any person who was during the last
12 months of the Employment a customer, or client of, or in the habit of
dealing with the Company, or any Group Company, and in respect of which the
Executive had access to confidential information or with whose custom or
business the Executive is or was personally concerned during that 12 month
period. |
| |
| |
17.2.4 |
During the Restricted Period he will not, interfere or endeavour to interfere
with the continuance of the provision of goods or services to the Company,
or any Group Company, by any supplier which was a supplier of goods or services
to the Company, or any Group Company during the last 12 months of the Employment
and with whom the Executive dealt to a material extent during that period. |
| |
| |
17.2.5 |
During the Restricted Period he will not entice or try to entice away from the
Company or any Group Company any person who is still employed by the Company
or a Group Company during the Restricted Period and is a senior employee,
director or full time senior consultant of such a company and with whom he
worked closely in the last six months of the Employment. |
– 11 –
| 17.3 |
Each of the obligations imposed on the Executive by this Section 17 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. |
| |
|
| 17.4 |
Following the Termination Date, the Executive will not represent himself as being
in any way connected with the businesses of the Company, GSK plc or of any
other Group Company (except to the extent agreed in writing by such a company). |
| |
|
| 17.5 |
Any benefit given or deemed to be given by the Executive to any Group Company
under the terms of Section 17 is received and held on trust by the Company
for the relevant Group Company. The Executive will enter into appropriate
restrictive covenants directly with other Group Companies if asked to do
so by the Company or GSK plc. |
| |
|
| 18 |
Reasonableness of Restrictions |
| |
| 18.1 |
Each of the obligations on the Executive contained in Section 17 constitutes
a separate and independent restriction on the Executive notwithstanding that
they may be contained in the same Section, paragraph or sentence. |
| |
| 18.2 |
Should the restrictions contained in Section 17 be found to be void but would
be valid if some part thereof were deleted or the period or radius of application
reduced, then such restriction shall apply with such modification as may
be necessary to make it valid and effective. In particular, the Executive
agrees that the restrictions are reasonable and necessary for the protection
of the Company and the Group Companies. |
| |
| 18.3 |
If the Executive shall, during the Restricted Period, receive from any person,
firm or company, an offer to provide services in any capacity whatsoever,
or to enter into employment where acceptance of such offer, or the taking
of such employment, might render him in breach of the provisions of this
Agreement, he shall promptly advise the offeror of the existence of the restrictions
set forth in Section 17 of this Agreement. |
| |
| 18.4 |
The Executive acknowledges that the Company may have no adequate remedy at law
and would be irreparably harmed if the Executive breaches or threatens to
breach the provisions of Section 17 above and, therefore, agrees that the
Company shall be entitled to injunctive relief to prevent any breach or threatened
breach of Section 17 above, and to specific performance of the terms of each
such Section in addition to any other legal or equitable remedy it may have.
The Executive further agrees that he shall not, in any equity proceedings
involving him relating to the enforcement of Section 17 above raise the defence
that the Company has an adequate remedy at law. Nothing in this Agreement
shall be construed as prohibiting the Company from pursuing any other remedies
at law or in equity that it may have. |
| |
|
| |
In the event that any provision or portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the remaining provisions or portions of this Agreement shall be unaffected thereby and shall remain in full force and effect to the fullest extent permitted by law. |
– 12 –
| 20 |
Successors and Assigns |
| |
| 20.1 |
This Agreement shall be binding upon and
inure to the benefit of the Company or any corporation or other entity to
which the Company may transfer
all or substantially all of its assets and business and to which the Company
may assign this Agreement, in which case “Company”, as used
in this Agreement, shall mean such corporation or other entity. The foregoing
shall not relieve the Company of any of its obligations under Section 16 of this
Agreement. The rights of the Executive shall inure to the benefit of his heirs,
executors, administrators and other personal representatives. |
| |
| 20.2 |
The Executive may not assign this Agreement or any part of it, or any rights
thereunder or delegate any duties to be performed by him under it to anyone
else. |
| |
|
| |
To the extent contemplated by this Agreement, respective rights and obligations of the parties set out in this Agreement shall survive any termination of this Agreement to the extent necessary to the intended preservation of such rights and obligations. |
| |
|
| |
Any notice (including any Termination Notice) required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given when delivered personally or sent by courier, duly addressed to the party concerned at the address set out above or to such other address as the party may notify to the other. Any notice delivered personally under this Section 22 shall be deemed given on the date delivered and any notice sent by courier shall be deemed given on the date delivery is recorded by such courier. |
| |
| 23.1 |
This Agreement supersedes any previous written or oral agreement between the
parties in relation to the matters dealt with in it. It contains the whole
agreement between the parties relating to the Employment at the date the
agreement was entered into (except for those terms implied by law which cannot
be excluded by the agreement of the parties). The Executive acknowledges
that he has not been induced to enter into this Agreement by any representation,
warranty or undertaking not expressly incorporated into it. |
| |
| 23.2 |
Neither party’s rights or powers under this Agreement will
be affected if: |
| |
| |
23.2.1 |
one party delays in enforcing any provision of this Agreement; or |
| |
| |
23.2.2 |
one party grants time to the other party. |
| |
|
| 24 |
Amendment or Modification; Waiver |
| |
|
| |
No provision of this Agreement may be amended or waived unless such amendment or waiver is agreed to in writing, signed by the Executive and by a duly authorised officer of the Company who shall supply the Executive with evidence of such authority. |
| |
|
| |
Anything to the contrary notwithstanding, all payments required to be made by the Company under this Agreement to the Executive, or to his estate or beneficiaries, shall be subject to withholding of such amounts relating to taxes as the Company may be required to withhold pursuant to any applicable statute, law or regulation. |
– 13 –
| 26 |
Indemnification and Insurance |
| |
|
| 26.1 |
The Company agrees that if
the Executive is made a party or is threatened to be made a party to any
action, suit, proceeding or governmental
or other investigation by reason of the fact of the Employment or that he is
or was a director, officer or employee of the Company or is or was serving at
the request of the Company as a director, officer, employee or agent of another
Group Company or entity except for any action instigated by the Company or the
Executive (a “Proceeding”), he shall be indemnified by the
Company to the fullest extent permitted by applicable law against all expenses,
liabilities and losses reasonably incurred or suffered by the Executive in connection
with such a Proceeding (including any tax payable by the Executive as a result
of payments made by the Company pursuant to this indemnity), including, without
limitation, payment of expenses incurred in defending a Proceeding prior to the
final disposition of such Proceeding; PROVIDED, however, that written notice
of such Proceeding is given promptly to the Company by the Executive and the
Company is permitted (where appropriate) to participate in and assume the defence
of such Proceeding. The provisions of this Section 26 shall survive the termination
of the Employment and shall be in addition to any other rights to indemnification
to which the Executive may from time to time be entitled, whether under any applicable
insurance policies or otherwise. |
| |
|
| 26.2 |
The Company will provide the Executive with Legal Expenses Insurance
and Directors’ and Officers’ Liability Insurance under the Company’s
policy current from time to time in force subject to such cover being available
at reasonable commercial rates. |
| |
|
| 27 |
Collective Agreements – Disciplinary Rules and Procedures |
| |
|
| |
There are no collective agreements which directly affect the terms and conditions set out in this Agreement. |
| |
|
| |
The Company’s harassment
and bullying policies, disciplinary rules and procedures and grievance procedures,
as in force from time to time, shall apply to the Executive. The Company
reserves the right to leave out any or all of the stages of those rules and
procedures where it considers it appropriate to do so. |
| |
|
| |
The Executive consents to the
Company or any Group Company holding and processing both electronically and
manually the data it collects which relates to the Executive for the purpose
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 a Group 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. |
– 14 –
| |
|
| |
This Agreement shall be deemed a contract made under, and for all purposes shall be construed in accordance with, the laws of England. Each of the parties submits to the exclusive jurisdiction of the English courts as regards any claim or matter under this Agreement. |
| |
|
| |
Titles to the Sections in this Agreement are intended solely for convenience and no provision of this Agreement is to be construed by reference to the title of any Section. |
| |
|
| |
In witness whereof the parties hereto have executed this Agreement as a deed on the day and year first above written |
| |
|
| |
|
|
THE COMMON SEAL of
GLAXOSMITHKLINE SERVICES
UNLIMITED was hereunto affixed in the
presence of: |
 |
|
| |
|
|
| |
|
|
| Director |
/s/ Xxxxx Xxxx |
|
|
| |
Xxx Xxxxxxxxxxx Xxxx |
|
|
| |
|
|
| Secretary |
/s/ Xxxxx Xxxxxxxx |
|
|
| |
Xxxxx Xxxxxxxx |
|
|
| |
|
| |
|
|
Signed Sealed and Delivered by the
said XXXX XXXXXX in the presence
of: |
|
|
| /s/ Xxxx Xxxxxx |
| Xxxx Xxxxxx |
| |
| |
|
|
| Name: |
/s/ Xxxxx Xxxxxxxx |
|
|
| |
Xxxxx Xxxxxxxx |
|
|
| |
|
|
| Address: |
000 Xxxxx Xxxx Xxxx |
|
|
| |
Xxxxxxxxx |
|
|
| |
Xxxxxxxxx XX0 0XX |
|
|
| |
|
|
| Occupation |
Company Secretary |
|
|
– 15 –
Appendix 1: Schedule of Directorships and Outside Interests
A list of the directorships and outside interests of the Executive approved by the GSK Board as at the date of this Agreement is set out below:-
| Company Name |
Title |
| The Audit Liaison Group |
Member |
| Siemens AG |
Member of Board |
| The Code Committee of the Takeover Panel (2000-2001) |
Member of Board |
| GlaxoSmithKline Pharmaceuticals Limited |
Director (Non-Executive) |
| GlaxoSmithKline plc |
Chief Financial Officer |
| Glaxo Group Limited |
Director |
| GlaxoSmithKline Services Unlimited |
Director |
| Wellcome Limited |
Director |
| Block Drug International Inc |
Director |
| BW USA Inc |
Director |
| Clarges Pharmaceuticals Trustees Limited |
Director |
| Edinburgh Pharmaceutical Industries Limited |
Director |
| Glaxo Investments (UK) Limited |
Director |
| Glaxo Trustees Limited |
Director |
| Glaxo Venture Limited |
Director |
| Glaxo Wellcome Holdings Limited |
Director |
| Glaxo Wellcome International B.V. |
Director |
| Glaxo Wellcome Investments B.V. |
Director |
| GlaxoSmithKline Capital Inc |
Director |
| GlaxoSmithKline Export Limited |
Chairman |
| GlaxoSmithKline Financial Inc |
Director |
| GlaxoSmithKline Holdings (Americas) Inc. |
Director |
| GlaxoSmithKline Vehicle Finance Limited |
Director |
| Royal Academy |
Trustee |
| SB Holdings Capital Inc |
Director |
| SmithKline Xxxxxxx Holdings Corporation |
Director |
| SmithKline Xxxxxxx International Co. |
Director |
| SmithKline Xxxxxxx Properties, Ltd |
Director |
| The Wellcome Foundation Investment Company Limited |
Director |
| The Wellcome Foundation Limited |
Director |
– 16 –
Appendix 2: Other Benefits
TotalReward makes the spirit of GSK an everyday reality for our people and is a major building block for achieving our mission. The principles have been developed to ensure that the interest of our employees is very closely aligned with GSK's.
TotalReward is a competitive package designed to attract, retain, motivate and develop the best talent. At the same time, it is cost-effective, benefiting GSK and our employees. Below is a list providing examples of the benefits currently provided as at the date of the contract.
TotalReward includes:
| |
|
| • |
Total Cash opportunities – Salary, Bonus, Share Option Plan, Performance
Share Plan, Annual Investment Plan |
| |
|
| |
|
| • |
Lifestyle Benefits –Total Care, Holidays and Corporate Discounts |
| |
|
| |
|
| • |
Savings Choices – ShareReward, ShareSave and Pension Plan |
The Executive’s future
participation in certain of these plans and programmes may be affected if
he does not satisfy the Share Ownership Requirements (as amended from time
to time).
Details of the relevant plans and programmes and Share Ownership Requirements are set out in the TotalReward section on myGSK.
The company reserves the right
to amend, modify or withdraw the benefits, from time to time.
– 17 –
