THIS AGREEMENT is made the_______ day of__________July 1998
BETWEEN;
(1) Bioenvision, Inc. whose registered office is at Xxxxxxxxx Xxxxx, 00
Xxxxxxxx Xxxxx, Xxxxxx XX0X 0XX (the 'Company') and
(2) Xxxxxx Xxxxxx, of Castlefield, Old Park Lane, Farnham, Surrey, England
(the 'Director').
Whereas it is agreed that the Company shall employ the Director and the
Director shall serve as a Director of the Company on the following terms
and subject to the following conditions:
1 DEFINITIONS AND INTERPRETATION
1.1 In this agreement unless the context otherwise requires the following
expressions shall have the following meanings:
"Board" The Board of Directors for the time being of the Company
"Group" The Company and its subsidiaries from time to time
"Incapacity" Any illness or other like cause incapacitating the Director
from attending to his duties
"Index Where any amount is stated to be index linked it shall be
linked" adjusted annually on 1 May each year commencing on 1 May 1998
by a percentage equal to the percentage increase in the retail
price index published by the Government to 30 April in the
year in question from the 30 April in the previous year
"Intellectual Includes letters patent, trade marks, service marks, designs,
property" utility models, copyrights, design rights, applications for
registration of any of the foregoing and the right to apply
for them in any part of the world; moral rights, inventions,
confidential information, know-how, and rights of like nature
arising or subsisting anywhere in the world, in relation to
all of the foregoing, whether registered or unregistered
"Subsidiary" A subsidiary (as defined by the Companies Act 1985) for the
time being of the Company
1.2 Any reference to a statutory provision shall be deemed to include a
reference to any statutory modification or re-enactment of it.
1.3 The headings of this agreement are for convenience only and shall not affect
its construction or interpretation.
2 TERM OF EMPLOYMENT
The employment of the Director (subject to termination as provided below) shall
be for an initial period of 2 years from _______ 1998 and shall be terminable by
either
Agreement between Company and Director
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party giving to the other not less than 3 months notice in writing expiring at
any time after the expiry of such period.
3 DUTIES
3.1 The Director shall during his employment under this Agreement:
3.1.1 perform the duties and exercise the powers which the Board may from
time to time properly assign to him in his capacity as Director of
the Company or the Director of any one or more of its subsidiaries
including serving on the Board of such subsidiaries or on any other
executive body or any committee of such a company, and
3.1.2 do all that is reasonably in his power to promote, develop and
extend the business of the Company and of its subsidiaries and at
all times and in all respects to conform to and comply with the
proper and reasonable directions and regulations of the Board.
3.2 During any notice period the Director shall carry out his duties and
exercise his powers with any other directors appointed by the Board to act
with him and the Board may at any time during such period require the
Director to cease performing or exercising any duties or powers.
3.3 The Director shall work in any place within the United Kingdom which the
Board may require for the proper performance and exercise of his duties
and powers and he may be required to travel on the business of the Company
or any of its subsidiaries anywhere in the world.
3.4 If the Company requires the Director to work permanently at a place which
necessitates a move from his present address the Company will reimburse
the Director for all removal expenses directly and reasonably incurred as
a result of the Company's requirement up to the maximum permitted under
the Inland Revenue's Extra Statutory concession from time to time relating
to such reimbursement.
4 OFFICE OF DIRECTOR
During his employment under this Agreement the Director shall not:
4.1 voluntarily resign as Director of the Company.
4.2 voluntarily do or refrain from doing any act whereby the office as a
director of the Company is or becomes liable to be vacated.
5 REMUNER4TION
5.1 Salary
As remuneration, the Director shall be paid a basic salary (which shall be
index linked) at the rate of $ (US dollars) per annum (or such higher rate
as the Company may in its absolute discretion from time to time decide or
award) inclusive of any director's fees payable to him under the Articles
of Association of the Company and its subsidiaries, payable in arrears by
equal monthly instalments on the 25th day of every month.
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5.2 Bonus
The Director shall be entitled to an annual bonus which shall be
calculated as a percentage of the Director's salary on the achievement by
the Company of its Target as agreed. The bonus may be paid as shares in
the Company, at the Director's request.
6 PENSION SCHEME
The Director shall during his employment under this Agreement be entitled to
become a member of a private pension plan scheme and in the event that the
Director shall become such a member of such a scheme the Company will pay a
contribution equal to 5% of the Director's Salary to the Scheme provided that
the Director also pays a contribution equal to 3% of his salary to the scheme.
7 EXPENSES
The Company shall by way of reimbursement pay, or procure to be paid, to the
Director all reasonable travelling hotel and other expenses wholly exclusively
and necessarily incurred by him in or about the performance of his duties under
the Agreement.
8 ILLNESS
8.1 The Director shall continue to be paid during his absence due to his
incapacity (such payment to be inclusive of any statutory sick pay or
social security benefits to which he may be entitled) for a total of up to
8 weeks in any one year.
8.2 After the expiry of the 8 week period referred to in clause 8.1 the
Director shall continue to be paid 50% of his basic salary (inclusive of
any statutory sick pay or social security benefits to which he may be
entitled) up to a further period of 4 weeks in any one year.
9 DEATH IN SERVICE
9.1 On the death of the Director in service the Director's Estate shall be
entitled to receive a lump sum benefit equal to two times his basic salary
at the previous May, excluding any bonus (hereinafter the "Pensionable
Salary").
10 PERSONAL ACCIDENT
10.1 The Director is entitled to become a member of the Company's Personal
Accident Travel policy.
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11 DIRECTORS AND OFFICERS LIABILITY INSURANCE
The Director shall be entitled to become a member of the Company's Directors and
Officers Liability Insurance Scheme.
12 RESTRICTIONS DURING EMPLOYMENT
12.1 During the continuance of his employment under this Agreement the Director
shall, unless prevented by incapacity, devote to the Company (or any other
member of the group by whom he is employed) his time, attention and skill
for (______days) per month and during this time use his reasonable
endeavours to develop the business and interests of the Group and perform
his duties to the best of his ability.
12.2 The Company recognises and acknowledges the Director's rights to be
employed by other companies or to be the director of another company of
which he is a major shareholder, but the Director undertakes to the
Company that during his employment with the Company or any subsidiary of
the Company he shall not, whether as principal, partner, shareholder,
director, manager, employee, contractor, consultant, agent either on his
own account or for any other person or otherwise howsoever:
12.2.1 directly or indirectly engage or be concerned or interested in any
business in competition with any business carried on by the Company
or any of its subsidiaries from time to time, solicit the custom of
any person who is a supplier to the Company or any of its
subsidiaries or to whom the Company or any of its subsidiaries has
made a quotation with a view to such person becoming a customer of
any such businesses or has a continuing course of dealing with the
Company or any of its subsidiaries, or
12.2.2 endeavour to entice away from the Company or any of its
subsidiaries any person who is an employee of the Company or any of
its subsidiaries.
12.3 The Director undertake to the Company that he shall have no material
interest in any contract (other than his own contract of employment)
entered into by the Company or any of its subsidiaries without the prior
consent of the Board.
12.4 The Director undertakes to the Company that he shall not, either during
the continuance of his employment by the Company or any of its
subsidiaries thereafter or for so 1ong as he is a shareholder of the
Company or any of its subsidiaries or thereafter (except with the
authority of the Board or if required by law) use to the detriment or
prejudice of the Company or any of its subsidiaries or, except in the
proper course of his duties, divulge to any person, any trade secret or
confidential information concerning the business or affairs of the Company
or any of its subsidiaries
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Agreement between Company and Director
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PROVIDED THAT the restriction shall cease to apply to information or knowledge
which comes into the public domain otherwise than by reason of default of the
Director concerned.
12.5 The Director undertakes to the Company that if his position (if any) as a
director of the Company or any of its subsidiaries is terminated he shall
not for a period of six months from the date of such termination (which
shall be taken to mean the expiry of his notice period) whether as
principal, partner, shareholder, director, manager, employee, contractor,
consultant, agent either on his own account or for any other person or
otherwise howsoever:
12.5.1 within the United Kingdom and in competition with any of the
businesses carried on by the Company or any of its subsidiaries at
the date of termination, solicit the custom of any person who (as
at the date of such termination) is a supplier to the Company or
any of its subsidiaries or to whom (as at the date of termination)
the Company or any of its subsidiaries has made a quotation with a
view to such person becoming a customer of any such businesses or
whom at the date of such termination either is a customer of any
such businesses or has a continuing course of dealing with the
Company or any of its subsidiaries, or
12.5.2 endeavour to entice away from the Company or any of its
subsidiaries any person who at the date of such termination was an
employee of the Company or any of its subsidiaries.
PROVIDED THAT sub-clauses 12.5.1 and 12.5.2 of the Clause shall not apply if the
Director has been wrongfully or unfairly dismissed or wrongfully or unfairly
constructively dismissed within the meaning of the Employment Protection
(Consolidation) Xxx 0000.
12.5.3 The Director agrees that if such restrictions as are contained in
this Clause as a whole shall be judged by a competent court to go
beyond what is reasonable for the protection of the interests of
the Company, but would be reasonable and enforceable if certain
words were deleted or if the area or time covered were reduced,
the same restrictions shall apply with such words deleted and the
said area or time shall be reduced by whatever extent shall be
necessary to make such restrictions valid and effective and such
restrictions shall apply as so modified.
13 INVENTIONS
13.1 The parties foresee that the Director may make, discover or create
Intellectual Property in the course of his duties under this
Agreement and agree that in this respect the Director has a special
obligation to further the interests of the Company.
13.2 In accordance with the provisions of the Patent Xxx 0000, the
Registered Designs Xxx 0000 and the Copyright, Designs and Patents
Xxx 0000, if at any time in the course of his employment under this
Agreement the Director makes or discovers or participates in the
making or discovery of any
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Agreement between Company and Director
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Intellectual Property relating to or capable of being used in the business
for the time being carried on by the Company or any of its subsidiaries,
full details of the Intellectual Property shall immediately be
communicated by him to the Company and shall be the absolute property of
the Company. At the request and expense of the Company the Director shall
give and supply all such information, data, drawings and assistance as may
be required to enable the Company to exploit the Intellectual Property to
the best advantage and shall execute all documents and do all things which
may be necessary or desirable for obtaining patents or other protection of
the Intellectual Property in such parts of the world as may be specified
by the Company and for vesting the same in the Company or as it may
direct.
13.3 If the Director makes or discovers or participates in the making or
discovery of any Intellectual Property during his employment under the
Agreement but which is not the property of the Company under Clause 13.2,
the Company shall, subject only to the provisions of the Patent Xxx 0000,
have the right to acquire for itself or its nominee the Director's rights
in the Intellectual Property within 3 months after disclosure pursuant to
Clause 13.2 on fair and reasonable terms to be agreed or settled by a
single arbitrator.
13.4 The Director waives all his Moral Rights as defined in the Copyright,
Designs and Patents Xxx 0000 in respect of any acts of third parties done
with the Company's authority in relation to the Intellectual Property (the
property of the Company by virtue of Clause 13.2 hereof).
13.5 Rights and obligations under this Section shall continue in force after
termination of this Agreement in respect of Intellectual Property made or
discovered during the Director's employment under this Agreement and shall
be binding upon his representatives, heirs and assigns.
14 CONFIDENTIALITY
14.1 The Director is aware that in the course of his employment under this
Agreement he will have access to and be entrusted with information in
respect of the business and financing of the Company and its dealings
transactions and affairs and likewise in relation to its subsidiaries, all
of which information is or may be confidential.
14.2 The Director shall not (except in the proper course of his duties) during
or after the period of employment under this Agreement divulge to any
person whomsoever or otherwise make use of (and shall use his best
endeavours to prevent the publication or disclosure of) any trade secret
or any confidential information concerning the business of the Company or
any of its subsidiaries or any of its/their dealings, transactions or
affairs.
14.3 All notes and memoranda of any trade secrets or confidential information
concerning the business of the Company or any of its subsidiaries or any
of its/their suppliers, agents, distributors or customers which shall have
been acquired, received or made by the Director during the course of his
employment shall be the property of the Company and shall be surrendered
by the Director to someone duly authorised in that behalf at the
termination of his
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employment or at the request of the Board at any time during the course of
his employment.
15 TERMINATION OF DIRECTORSHIP
The employment of the Director under this Agreement shall terminate
automatically in the event of him ceasing to be a Director of the Company
and in that event the Director shall have no claim for damages against the
Company unless he shall so cease by virtue of a resolution passed by the
members of the Company in general meeting to remove him as director and at
the same time of such removal the Company is not otherwise entitled to
terminate his employment under this Agreement.
16 SUMMARY TERMINATION OF EMPLOYMENT
The employment of the Director may be terminated by the Company without notice
or payment in lieu of notice:
16.1 in the event of any serious (the Director having been warned in respect
thereof) persistent breach or non-observance by the Director of any of the
stipulations contained in the Agreement, or
16.2 if the Director has an interim receiving order made against him, becomes
bankrupt or makes any composition or enters into any deed of arrangement
with his creditors, or
16.3 if the Director is convicted of any arrestable criminal offence (other
than an offence under road-traffic legislation in the United Kingdom or
elsewhere for which a fine or non-custodial penalty is imposed), or
16.4 if the Director is disqualified from holding office in another company in
which he is concerned or interested because of wrongful trading under the
Insolvency Xxx 0000, or
16.5 if the Director shall become of unsound mind or become a patient under the
Mental Health Xxx 0000, or
16.6 if the Director is convicted of an offence under the Companies Securities
(Insider Dealing) Xxx 0000 or under any other present or future statutory
enactment or regulations relating to insider dealing, or
16.7 if the Director resigns as a director of the Company otherwise than at the
request of the Company
17 RESIGNATION FROM DIRECTORSHIPS UPON TERMINATION
Upon the termination by whatever means of this Agreement:
17.117.1 the Director shall at the request of the Company immediately resign
from office as a director of the Company and from such offices held by him
in subsidiaries as may be so requested without claim for compensation and
in the event of his failure so to do the Company is hereby irrevocably
authorised to
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Agreement between Company and Director
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appoint some person in his name and on his behalf to sign and deliver such
resignation or resignations to the Company or any of its subsidiaries, and
17.2 the Director shall not without the consent of the Company at any time
thereafter represent himself still to be connected with the Company or any
of its subsidiaries.
18 RECONSTRUCTION OR AMALGAMATION
If the employment of the Director under this Agreement is terminated by
reason of the liquidation of the Company for the purpose of reconstruction
or amalgamation and the Director is offered employment with any concern or
undertaking resulting from the reconstruction or amalgamation on terms and
conditions not less favourable than the terms of this Agreement then the
Director shall have no claim against the Company in respect of the
termination of his employment under this Agreement.
19 NOTICES
19.1 Any notice or other communication under or in connection with this
Agreement shall be in writing and shall be delivered personally or sent by
first class post pre-paid recorded delivery (and air-mail if overseas) or
by telex or by telefax to the party due to receive the notice or
communication at its address set out in this Agreement or such other
address as either party may specify by notice in writing to the other.
19.2 In the absence of evidence of earlier receipt any notice or other
communication shall be deemed to have been duly given:
19.2.1 if delivered personally, when left at the address referred to in
Clause 19.1;
19.2.2 if sent by mail other than air-mail, two days after posting it;
19.2.3 if sent by air-mail, six days after posting it;
19.2.4 if sent by telex, when the proper answer back is received, and;
19.2.5 if sent by telefax, on completion of its transmission.
20 STATUTORY INFORMATION
The schedule to this Agreement set out information required to be given to the
Director by the Employment Protection (Consolidation) Xxx 0000 as amended.
21 GOVERNING LAW AND JURISDICTION
This Agreement is governed by and shall be construed in accordance with the laws
of England, and the parties hereto submit to the non-exclusive jurisdiction of
the English courts.
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22 ENTIRE AGREEMENT
This Agreement contains the entire understanding between the parties and
supersedes all previous agreements and arrangements (if any) relating to the
employment of the Director by the Company (which shall be deemed to have been
terminated by mutual consent).
23 COUNTERPARTS
This Agreement may be executed by the different parties in separate
counterparts, each of which when executed and delivered shall constitute an
original but both of which shall together constitute one and the same
instrument.
IN WITNESS of which the parties have executed this Agreement as follows:
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DIRECTOR ---------------------
Date:
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For COMPANY
---------------------
Date:
