England and Wales (State or Other Jurisdiction of Incorporation) | 001-37599 (Commission File Number) | 98-1268150 (IRS Employer Identification No.) |
Emerging growth company | o |
o |
LivaNova PLC | |
Date: March 26, 2018 | By:/s/ Catherine Moroz |
Name: Catherine Moroz | |
Title: Company Secretary | |
(1) | The LIVANOVA PLC Filiale Italiana, Iscritta al Registro Imprese di Milano con Codice Fiscale 09167120964, Partita IVA 09167120964, and having its registered office at Via Benigno Crespi 17, 20159 Milano, Italy (the “Company”); and |
(2) | BRIAN SHERIDAN, with registered residence at Via Panfilo Castaldi 33, 20124, Milan, Italy (the “Consultant”). |
1. | DEFINITIONS AND INTERPRETATION |
1.1 | Definitions |
“Agreement” | means this contract |
“Appointment” | means the engagement of the Consultant under this Agreement, or, as the context requires, the duration of that engagement |
“Commencement Date” | means 1st July, 2017, following the termination (on June 30th, 2017), of Consultant’s employment by LivaNova PLC – Filiale Italiana |
“Confidential Information” | means all information which is identified or treated by the Company or any Group Company or any of the Group’s clients or customers as confidential or which by reason of its character or the circumstances or manner of its disclosure is evidently confidential including any information about the personal affairs of any of the directors (or their families) of the Company or any Group Company, business plans, proposals relating to the acquisition or disposal of a company or business or proposed expansion or contraction of activities, maturing new business opportunities, research and development projects, designs, secret processes, trade secrets, product or services development and formulae, know-how, inventions, sales statistics and forecasts, marketing strategies and plans, costs, profit and loss and other financial information (save to the extent published in audited accounts), prices and discount structures and the names, addresses and contact and other details of: (a) employees and their terms of employment; (b) customers and potential customers, their requirements and their terms of business with the Company/Group; and (c) suppliers and potential suppliers and their terms of business (all whether or not recorded in writing or in electronic or other format) |
“Group” | means the Company, any presently existing holding company or undertaking of the Company and subsidiaries and subsidiary undertakings of the Company or such holding company or undertaking |
“Group Company” | means any company within the Group |
“Minority Holder” | means a person who either solely or jointly holds (directly or through nominees) any shares or loan capital in any company whose shares are listed or dealt in on a recognised investment exchange (as that term is defined by section 285 Financial Services and Markets Act 2000) provided that such holding does not, when aggregated with any shares or loan capital held by the Consultant’s partner and/or his or his partner’s children under the age of 18, exceed 3% of the shares or loan capital of the class concerned for the time being issued |
“Project Trident” “Protected Business” | means the confidential examination of, and if appropriate, execution of, strategic options regarding a division of LivaNova PLC means any business pertaining to a product marketed and sold or under substantial development by the Company during the term of this Agreement which is within the business perimeter of the subject division of Project Trident |
“Restricted Area” | means any country in the world where, during the term of this Agreement, the Company is engaged in a Protected Business |
“Services” | means the services, work and other tasks to be provided by the Consultant to the Company in accordance with this Agreement as described in Clause 3 |
“Termination Date” | means the date of termination of the Appointment |
1.2 | Interpretation and construction |
(a) | words importing the singular shall include the plural and vice versa; |
(b) | words importing any gender shall include all other genders; |
(c) | any reference to a Clause, the Schedule or Part of the Schedule is to the relevant Clause, Schedule or part of the Schedule of or to this Agreement unless otherwise specified; |
(d) | references to this Agreement or to any other document shall be construed as references to this Agreement or to that other document as modified, amended, varied, supplemented, assigned, novated or replaced from time to time; |
(e) | references to any statute or statutory provision (including any subordinate legislation) includes any statute or statutory provision which amends, extends, consolidates or replaces the same, or which has been amended, extended, consolidated or replaced by the same, and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision; |
(f) | references to a “person” includes any individual, firm, company, corporation, body corporate, government, state or agency of state, trust or foundation, or any association, |
(g) | general words shall not be given a restrictive meaning because they are followed by words which are particular examples of the acts, matters or things covered by the general words and “including”, “include” and “in particular” shall be construed without limitation; and |
(h) | the words “other” and “otherwise” shall not be construed eiusdem generis with any foregoing words where a wider construction is possible. |
1.3 | Headings |
2. | TERM |
3. | SERVICES |
3.1 | Provision of Services |
(a) | With effect from the Commencement Date, the Consultant shall, on request by any representative of the Company, designated as such by the Company’s Chief Executive Officer (“CEO”), provide with regard to Project Trident advisory services, including without limitation, selection and management of outside Counsel, negotiation strategy, advice regarding communications strategy for the subject division of the project, for LivaNova PLC and for external stakeholders, together with such other services as the Company and the Consultant may from time to time mutually agree, including providing services to any Group Company involved in Project Trident. |
(b) | The Consultant may engage another person to perform any administrative, clerical or secretarial functions that are reasonably incidental to the provision of the Services provided that the Consultant accepts all liability for the terms of engagement and shall indemnify the Company from and against any claims or liability arising from that engagement. The Company will not provide the Consultant with any administrative, clerical or secretarial functions, unless agreed expressly with the CEO from time to time. |
(c) | The Consultant will perform the Services in compliance with all applicable laws, rules and regulations and, in addition, the Consultant will comply with all internal policies and regulations of the Group as are identified to the Consultant from time to time in writing, including, but not limited to, the Company’s Code of Conduct and its supporting policies and procedures. |
4. | FEES |
4.1 | Fee rate |
4.2 | In consideration of the Consultant providing the Services referred to in Clause 3.1 in accordance with this Agreement, the Company agrees to pay the Consultant the following fees: |
(a) | On 1st July, 2017 the Company agrees to pay the Consultant the sum of 50,000 euros in consideration of the reservation of time made available and foregoing of other business opportunities by Consultant to assist with Project Trident; |
(b) | On 1st July, 2017, and on the first day of each successive calendar month, the Company will pay Consultant a monthly, non-refundable retainer in the amount of 25,000 euros (the “Retainer”) to remunerate Consultant for his Services provided each month, such Retainer to be paid until either |
(i) | the present Agreement has been terminated by the Company in accordance with Section 2 and the notice period for same has expired (in which case the terms of Section 4.2(c) below shall apply), or |
(ii) | Project Trident has resulted in the signing of an agreement between Company and a buyer for a Sale resulting from Project Trident (where ‘Sale’ shall have the same meaning as that contained in the agreement between Company and its chosen banking or financial advisor), in which case both |
a. | the terms of Section 4.2(c) shall apply, and |
b. | the amount of the Retainer shall decrease from 25,000 euros to 15,000 euros, and shall continue until such time as the present Agreement is terminated according to its terms and any notice period expired; |
(c) | No later than five (5) working days from each of |
(i) | signing of an agreement for a Sale resulting from Project Trident, |
(ii) | the closing or consummation of any transaction for a Sale resulting from Project Trident and |
(iii) | the public announcement of Company’s intentions to effect a Sale during the pendency of Project Trident (if such announcement is or should under applicable laws and regulations applicable to LivaNova PLC be) announced prior to December 31st, 2017 |
(d) | In addition to the foregoing, Company shall: |
(i) | continue to provide Consultant with a lease vehicle consistent with the terms of any Car Policy applicable to employees of the Company in Italy; and |
(ii) | collaborate with Consultant to ensure maintenance of FASI / health insurance as was applicable to Consultant prior to the termination of his employment (same being a faculty provided to non-employees generally by Company). |
4.3 | Expenses |
4.4 | Obligation to pay tax |
4.5 | Tax indemnity |
4.6 | Deductions |
5. | NO EMPLOYMENT OR AGENCY |
5.1 | No employment, agency or partnership |
5.2 | Payment of Other Persons |
6. | INDEMNITY AND INSURANCE |
6.1 | Consultant’s undertaking |
6.2 | Indemnification of the Company and Consultant |
7. | OTHER INTERESTS |
7.1 | Restrictions on other activities and interests |
a. | during the pendency of this Agreement the Consultant shall not within the Restricted Area be employed or engaged or at all interested (except as a Minority Holder) in that part of a business which is involved in the Protected Business if it is or seeks to be in competition with the typical day to day operations of the perimeter of Project Trident; and |
b. | such employment or engagement has been demonstrated by the Board of Directors, after having heard the Consultant, to represent a clear and substantial threat to the performance of the Services. |
7.2 | Conflicts |
8. | CONFIDENTIAL INFORMATION |
8.1 | Restrictions on disclosure/use of Confidential Information |
(a) | divulge or communicate to any person; |
(b) | use for his own purposes or for any purposes other than those of the Company or any Group Company; or |
(c) | through any failure to exercise due care and diligence, cause any unauthorised disclosure of |
8.2 | Protection of Company documents and materials |
(a) | shall be and remain the property of the Company or the relevant Group Company or client; and |
(b) | shall be handed over by the Consultant to the Company or relevant Group Company or client on demand and in any event on the termination of the Appointment. |
8.3 | Each Party undertakes that it will not at any time during the Appointment or at any time (without limit) after the Termination Date make or publish or cause to be made or published to anyone in any circumstances any disparaging remarks concerning the other Party or any of its or their respective shareholders, officers, employees or agents. The Company undertakes not to make or publish or cause to be made or published to anyone in any circumstances any disparaging remarks concerning the Consultant. |
9. | TERMINATION |
9.1 | Termination events |
(a) | if the Consultant commits a material persistent breach of this Agreement, or fails to perform the Services to the standard required by this Agreement; or |
(b) | if the Consultant becomes insolvent or bankrupt or compounds with or grants a trust deed for the benefit of his creditors; or |
(c) | if the Consultant’s behaviour (whether or not in breach of this Agreement) is materially prejudicial to the interests of the Company or any Group Company, including if he is found guilty of any criminal offence punishable by imprisonment (whether or not such sentence is actually imposed). |
10. | DATA PROTECTION |
11. | AMENDMENTS, WAIVERS AND REMEDIES |
11.1 | Amendments |
11.2 | Waivers and remedies cumulative |
(a) | The rights of each party under this Agreement: |
(i) | may be exercised as often as necessary; |
(ii) | are cumulative and not exclusive of its rights under the general law; and |
(iii) | may be waived only in writing and specifically. |
(b) | Delay in exercising or non-exercise of any right is not a waiver of that right. |
(c) | Any right of rescission conferred upon the Company by this Agreement shall be in addition to and without prejudice to all other rights and remedies available to it. |
12. | ENTIRE AGREEMENT |
(a) | This Agreement, the documents referred to in it and the settlement agreement executed between the Company and the Consultant on even date hereof, constitute the entire agreement and understanding of the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between the parties, whether written or oral, relating to the subject matter of this Agreement. |
(b) | Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. |
(c) | Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. |
(d) | Nothing in this clause shall limit or exclude any liability for fraud. |
13. | NO OUTSTANDING CLAIMS |
14. | SEVERANCE |
(a) | the legality, validity or enforceability in that jurisdiction of any other provisions of this Agreement; or |
(b) | the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement. |
15. | NOTICE |
15.1 | Notices and deemed receipt |
(a) | if delivered personally, at the time of delivery; |
(b) | in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting; and |
(c) | in the case of registered airmail, five days from the date of posting; and |
(d) | in the case of email, at the time of transmission; |
16. | THIRD PARTY RIGHTS |
17. | ASSIGNMENT |
18. | GOVERNING LAW AND JURISDICTION |
18.1 | Governing law |
18.2 | Jurisdiction |
Brian Sheridan | /s/ Brian Sheridan |
by LivaNova PLC Filiale Italiana | /s/ Giorgio Cottura |