1
Exhibit 10.5
DATED 1998
--------------------------------------------------------
REYNARD MOTORSPORT LIMITED (1)
- and -
XXXX XXXXX (2)
--------------------------------------------------------
AGREEMENT
for service as
COMPOSITES DIRECTOR
--------------------------------------------------------
Davies Xxxxxx Xxxxxx
London
Tel: 0000 000 0000
2
CONTENTS
CLAUSE HEADING PAGE
1. Interpretation.....................................................1
2. Appointment and Term...............................................2
3. Duties ........................................................2
4. Remuneration.......................................................3
5. Benefits ........................................................3
6. Expenses ........................................................3
7. Other Interests....................................................3
8. Holiday ........................................................3
9. Sickness/Accident..................................................3
10. Intellectual Property..............................................4
11. Non-Disclosure of Confidential Information.........................5
12. Termination of Appointment.........................................6
13. Duties Upon Termination............................................7
14. Non-Competition....................................................7
15. Reconstruction.....................................................8
16. Disciplinary and Grievance Procedures..............................8
17. Prior Arrangements.................................................8
18. Notices and Proceedings............................................8
19. Benefit of Agreement...............................................9
20. Accrued Rights.....................................................9
21. General .........................................................9
22. Governing Law and Jurisdiction....................................10
3
AGREEMENT dated 1998
(1) REYNARD MOTORSPORT LIMITED (Company no 2843803) whose registered
office is at Xxxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx
XX0 0XX ("the Company"); and
(2) XXXX XXXXX of Xxxxxxx Xxx, Turweston, Near Brackley, Northants NN13
5JX ("the Executive").
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
In this Agreement and in the Schedules hereto unless the context
otherwise requires:-
1.1 The following words and expressions shall bear the following
meanings:-
"THE BOARD" the Board of Directors for the time being of the
Company (including any duly constituted committee thereof);
"THE BUSINESS" the business of the Company being the design and
manufacture of racing cars and racing car components and
consultancy services to the automotive and transportation
industries;
"COMPETING BUSINESS" any business which competes with the Business;
"CONNECTED PERSON" any person with which the Executive is connected
(as determined by section 839 of the Income and Corporation Taxes
Act 1988);
"THE GROUP" the Company and all Group Companies from time to time;
"GROUP COMPANY" the Company and every company which is for the time
being directly or indirectly a subsidiary of the Company or which
is a holding company of the Company or a subsidiary of any such
holding company as such phrases are defined in s736 of the
Companies Xxx 0000;
1.2 Words denoting the singular number shall include the plural and
vice versa.
1.3 Words denoting any gender shall include all genders.
1.4 References to persons shall include corporations and other
associations or bodies of persons whether or not incorporated and
any government, state or agency of a state whether or not any of
the foregoing has any separate legal personality.
1.5 Any reference to a statute or statutory provision shall be
construed as including a reference to any statutory modification,
consolidation or re-enactment (whether before
4
or after the date hereof) from time to time and shall include
reference to any provision of which it is a re-enactment (whether
with or without modification).
1.6 Clause headings are for ease of reference only and shall not affect
the construction or interpretation of this Agreement.
2. APPOINTMENT AND TERM
2.1 Subject to earlier termination by the Company at any time pursuant
to the provisions of Clauses 9 or 12 the Executive shall serve the
Company as Composites Director subject to the provisions of this
Agreement from the date of this Agreement for a period of four
years from the date hereof and continuing thereafter subject to not
less than six months notice of termination by the Company or the
Executive such notice not to expire prior to the end of such four
year period.
2.2 During the continuance of his appointment hereunder the Executive
shall well and faithfully serve the Company and all Group Companies
for which he may be required to perform services and use his best
endeavours to promote the interests of the Company and the Group
and devote his full time and attention to the proper performance of
his duties hereunder.
2.3 The working hours for the Executive shall be the normal working
hours of the Company as notified from time to time and the
Executive may be required to work such additional hours as may be
necessary properly to perform his duties hereunder. The Executive
agrees to waive his right to a maximum 48 hour working week as set
out in the Working Time Regulations 1998 during the term of this
Agreement. The Executive may terminate such agreement to waive at
any time by giving not less than three months written notice to the
Company.
3. DUTIES
3.1 The Executive shall perform such duties and exercise such powers
and discretions consistent with the position to which he is
appointed hereunder or with his status qualifications and
experience as the Board may from time to time reasonably delegate
to him.
3.2 The Executive shall in the performance of his duties hereunder and
without further remuneration (except as otherwise agreed) act as a
director, officer or employee of any other Group Company as the
Board may require and shall carry out the duties attendant on any
such appointment as if they were duties to be performed by him on
behalf of the Company hereunder.
3.3 The Executive shall whenever required to do so fully and promptly
give to the Board such explanations information and assistance as
the Board may require of all transactions and affairs relating to
the Company and every Group Company in or on which he is from time
engaged or for which he is from time to time responsible.
3.4 The Executive's employment shall be based at Brackley or at such
other location as the Board may from time to time deem appropriate
and notify to the Executive. The Executive shall if called upon to
do so and without any further remuneration than is mentioned herein
(but subject to reimbursement of his reasonable travel expenses
incurred in connection therewith) undertake such travel and perform
such duties in
5
any part of the United Kingdom or abroad as the Board may think fit
and as the Company's and/or any Group Company's business may
dictate.
4. REMUNERATION
4.1 The Company shall pay to the Executive by way of remuneration for
the proper performance of his duties hereunder a fixed salary at
the rate of (pound) 54,805 per annum such salary to be deemed to
accrue from day-to-day and to be payable by equal monthly
instalments (less tax and other appropriate deductions) in arrears
on or about the last day of the month;
4.2 Such remuneration shall (without obligation) be reviewed annually.
5. BENEFITS
5.1 The Executive is entitled to an annual contribution by the Company
of (pound) 500 and equal monthly contributions aggregating to
(pound) 20,195 per annum to an Inland Revenue approved pension
scheme.
5.2 The Executive is entitled to the benefit of the Company's private
medical insurance scheme from time to time.
6. EXPENSES
In addition to the salary payable hereunder there shall be
reimbursed to the Executive such sums as shall cover all expenses
properly and reasonably incurred by him in the performance of his
duties hereunder on production of the relevant receipts or other
evidence of payment therefor satisfactory to the Company including
expenses of entertainment subsistence and travelling.
7. OTHER INTERESTS
During the continuance of this appointment and for the period of
one year following the termination of this Agreement the Executive
and his Connected Persons shall not directly or indirectly carry on
or be engaged or interested in any Competing Business PROVIDED THAT
nothing in this Clause shall prevent the Executive holding or
owning for bona fide investment purposes not more than three per
cent of any class of stocks shares or debentures quoted or dealt in
on the London Stock Exchange.
8. HOLIDAY
In addition to normal bank and public holidays the Executive shall
be entitled to 30 working days holiday with pay in each year
(running 1 October to 30 September) to be taken at such times and
in such periods as shall be mutually agreed between the Executive
and the Company and which are consistent with the proper
performance of the duties of the Executive hereunder. Where the
Executive is employed for part of a year only, he will be entitled
to paid holiday pro rata to the number of completed weeks worked by
him in the relevant year.
6
9. SICKNESS/ACCIDENT
9.1 Without prejudice to the following provisions of this Clause 9 or
of Clause 2.1 if the Executive becomes incapable of carrying out
his duties hereunder because of illness or other incapacity he
shall on the production of a medical certificate or other evidence
satisfactory to the Board (the Board reserving the right to require
the Executive to be examined by a doctor nominated by the Board) be
entitled to receive:
9.1.1 the Executive's salary at the rate determined pursuant
to Clause 4 (inclusive of any sickness benefit
statutory sick pay or allowance or other injury or
disablement benefit to which the Executive may be
entitled whether or not claimed) during a continuous
period or an aggregate of three months in any period of
12 months;
9.1.2 one half of the Executive's salary at the rate
determined pursuant to Clause 4 (inclusive of any
sickness benefit, statutory sick pay or allowance or
other injury or disablement benefit to which the
Executive may be entitled whether or not claimed)
during a continuous period or an aggregate of over
three months but less than six months in any period of
12 months;
9.1.3 on the expiry of such period (aggregate or continuous)
of six months referred to in Clause 9.1.2 if the
Executive remains incapable of carrying out his duties
hereunder because of illness or incapacity (while such
illness or incapacity continues) such salary as the
Board may absolutely determine.
9.2 If the Executive shall be incapacitated by illness or accident for
a continuous period or an aggregate period of six months in any
period of 12 months at any time during the subsistence of this
appointment the Company may terminate the appointment of the
Executive hereunder forthwith and thereupon the Executive shall
have no claim against the Company in respect of such termination.
10. INTELLECTUAL PROPERTY
10.1 As part of, and in the normal course of, his duties under the
Agreement, the Executive will be concerned to carry on research
into and development of the processes, products, designs,
equipment, techniques and projects from time to time used, made or
undertaken by the Company or any Group Company or which could be
used, made or undertaken by them, and to invent, discover, design,
develop or improve processes, products, designs, equipment and
techniques for the benefit of and for use by the Company and any
Group Company.
10.2 If the Executive in the course of his normal duties or other duties
specifically assigned to him (whether or not during normal working
hours) either alone or in conjunction with any other person:
10.2.1 originates any design (whether registrable or not) or
other work in which copyright or design right may
subsist; and/or
10.2.2 makes, discovers or produces any invention, process or
development he shall forthwith disclose the same to the
Company and shall (subject to sub-
7
clauses 10.3, 10.4 and 10.5) regard himself in relation
thereto as a trustee for the Company.
10.3 The Executive hereby assigns wholly and absolutely the copyright,
future copyright, design right and future design right and other
proprietary rights if any for the full term thereof throughout the
world in respect of all copyright works written, originated,
conceived or made by the Executive (except only those copyright or
design right works written, originated, conceived or made by it or
him wholly outside the performance of his duties hereunder) during
the period of this Agreement to hold absolutely including the right
to xxx for damages for past infringements.
10.4 The Executive acknowledges that, for the purposes of section 2(1)
of the Registered Designs Xxx 0000 as amended by the Copyright
Designs and Patents Xxx 0000, the Company shall be treated as the
original proprietor of a design, where such design is created by
him in the course of the performance of his duties hereunder.
10.5 Any such invention, process or development will be the absolute
property of the Company (except to the extent, if any, provided
otherwise by section 39 of the Patents Act 1977) and the Executive
will, if and when required by the Company (whether during the
continuance of this Agreement or afterwards) and at its expense,
apply, or join with the Company in applying, for letters patent or
other protection in any part of the world for any invention process
or development.
10.6 The Executive agrees and undertakes that he will execute such deeds
or documents and do all such acts and things as may be necessary or
desirable or substantiate and maintain the rights of the Company in
respect of the matters referred to in sub-clauses 10.2 to 10.5
inclusive at the Company's request and expense.
10.7 The Executive irrevocably appoints the Company as his attorney in
his name and on his behalf to execute all documents and do all
things required in order to give full effect to the provisions of
this clause.
11. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION
11.1 The Executive shall not at any time either during or after the
termination of this Agreement unless otherwise required to do so by
law divulge or communicate to any person or persons except to those
of the officials of the Company whose province it is to know the
same or turn or seek to turn to the personal use or advantage of
the Executive or any third party any of the secrets or any other
information of whatsoever nature which may be in his possession or
which he may receive or obtain in relation to the dealings
transactions or affairs of any company within the Group or the
identity of those with whom any such company conducts business or
their dealings transactions or affairs (including but not limited
to information relating to the Business) or in relation to the
working of any process or invention or method of carrying on
business which is carried on or used or employed by any such
company or which he may make or discover at any time during the
subsistence of his appointment hereunder or use or attempt to use
any such secrets knowledge or other information in any manner which
may injure or cause loss whether directly or indirectly to any such
company as aforesaid or use his personal knowledge of or influence
over any customers clients suppliers or contractors of or to any
such company so as to take advantage of that
8
company's trade or business connections and shall at all times use
his best endeavours to prevent disclosure or publication of such
secrets and information.
11.2 The provisions of this Clause shall continue to apply after the
termination of this Agreement but shall cease to apply to any
information or knowledge which may at any time come into the public
domain other than through an unauthorised disclosure.
11.3 The Executive shall not during the subsistence of his appointment
hereunder or upon any termination (howsoever arising) make
otherwise than for the benefit of any Group Company any notes or
memoranda relating to any Group Company or its business all of
which shall in any event belong to the Group and/or the particular
company concerned.
12. TERMINATION OF APPOINTMENT
12.1 If the Executive shall:-
12.1.1 be guilty of any serious or wilful or persistent breach
or breaches or non-observance of any of the provisions
of this Agreement which if capable of remedy is not
remedied within 21 days of being required to do so
(including those of Clause 3.3) or refuse or fail to
carry out any of the duties assigned to him hereunder;
or
12.1.2 be guilty of conduct which in the opinion of the Board
is detrimental to the reputation or interests of the
Company or any other Group Company; or
12.1.3 become or be adjudicated bankrupt or have a petition
for bankruptcy presented against him or enter into any
arrangement or composition with his creditors or become
a patient as defined in the Mental Health Xxx 0000 or
become disqualified by law from being a director of or
taking part in the management of the Company or any
relevant Group Company; or
12.1.4 be found guilty of any criminal offence other than an
offence which in the reasonable opinion of the Board
does not affect his position as a director of the
Company;
12.1.5 absent himself from the performance of his duties
without just cause or permission;
the Company may in any such case (without prejudice to
any claims which the Company may have in respect of the
Executive's employment) by written notice to the
Executive summarily terminate the Executive's
employment hereunder without any payment in lieu of
notice or otherwise and the Executive shall have no
claim against the Company for damages or otherwise by
reason of such termination nor shall any delay by the
Company in exercising such right of termination
constitute any waiver of it.
12.2 The Company reserves the right to make payments in lieu of any
notice required to be given under this Agreement and any payment so
made in lieu of notice will have PAYE income tax and class 1
national insurance contributions deducted at source.
9
12.3 The Company also reserves the right to require the Executive to
remain away from work during his notice period as the Board may
consider appropriate and if the Company so requires the Executive
to remain away from work during his notice period (whether notice
shall have been given by the Executive or the Company) the
Executive will be required to comply with any and all conditions
laid down by the Company and (without prejudice to the foregoing)
whilst on full pay during such time will not be permitted to work
for any other person or on his own behalf without the prior written
consent of the Board.
12.4 Should the Executive leave without notice or during any notice
period without the prior consent of the Board the Company reserves
the right to deduct from or set off against any monies due to the
Executive from the Company (whether by way of salary, bonus,
accrued holiday pay, expenses or otherwise) a sum or sums equal to
the aggregate of a day's pay for each day not worked during the
notice period and any monies due (howsoever) from the Executive to
the Company.
13. DUTIES UPON TERMINATION
Upon termination of this Agreement for whatever reason and
howsoever arising or effected the Executive shall forthwith (and in
any event not later than seven days after such termination):-
13.1 deliver up to the Board all documents statistics accounts memoranda
papers records and other items of whatsoever nature or description
which may be in his possession or control and relate in any way to
the business or affairs of any Group Company (howsoever the same
may have come into his possession and whether or not they or any of
them may have been prepared by him) and no such documents or other
items as aforesaid nor any part or copy thereof shall be retained
by him; and
13.2 resign (without any right to claim for compensation or damages for
loss of such office or appointment) from the office of director and
from any other office or appointment held by him in the Company and
any Group Company.
14. NON-COMPETITION
14.1 Subject as hereinafter provided after the termination of his
employment hereunder (howsoever arising or effected) the Executive
shall not either on his own behalf or on behalf of any Connected
Person whether directly or indirectly for a period of one year:-
14.1.1 be engaged or interested or concerned directly or
indirectly in the provision of any services of a type
provided by the Company at any time during the period
of 12 months prior to the date of such termination in a
way which competes with the Company;
14.1.2 directly or indirectly solicit canvass or approach on
behalf of a competing business any person who at the
date of such termination or any time during the period
of 12 months prior to the date of such termination
was:-
(a) a customer or client with whom the Executive
had in such period any dealings or other
involvement on behalf of the Company; or
10
(b) to the Executive's knowledge negotiating
with the Company for the supply of goods or
services.
14.1.3 in relation to any Competing Business directly or
indirectly accept the custom of any person who at the
date of such cessation or at any time within the period
of 12 months prior to the cessation was a customer or
client of the Company or who was a prospective customer
or client and of whose prospective associations the
Executive was aware.
14.2 The Executive shall not at any time after ceasing to be employed
hereunder:-
14.2.1 interfere or seek to interfere with the continuance of
supplies (or the terms of such supplies) to the Company
from any suppliers who supply or have been supplying
goods materials or services to the Company at any time
during the period of 12 months prior to such cessation;
14.2.2 procure or assist in the commission of acts which if
done by the Executive would be in breach of the terms
of this Agreement;
14.2.3 make any untrue statement in relation to the Company
and in particular shall not represent himself as being
in any way employed by connected with or interested in
or knowledgeable about the business of the Company.
14.3 The Executive agrees that both during and for a period of three
years following termination or expiry of this Agreement he will not
at any time solicit or entice away or endeavour to solicit or
entice away (either alone or jointly with any other person), any
person employed by the Company in an executive, technical or sales
capacity with a view to inducing that person to leave his
employment or office with the Company or any Group Company and to
act for another employer in the same or a similar capacity.
14.4 The covenants contained in Clauses 14.1.1, 14.1.2, 14.1.3, 14.2.1,
14.2.2, 14.2.3 and 14.3 shall be construed as and are separate
covenants one from another.
14.5 The Executive acknowledges and agrees that the restrictions set out
in this Clause 14 are reasonable in all the circumstances and will
not prevent him from earning his livelihood.
14.6 If any covenant or restriction set out in this Clause 14 or any
part thereof is or would be held to be invalid or unenforceable or
void but would not be so held if modified or varied then such
provision shall apply with such modification or variation as may be
necessary to make it valid and effective.
15. RECONSTRUCTION
If before the expiration of this Agreement or any extension hereof
the appointment of the Executive hereunder shall be determined by
reason of reconstruction or amalgamation whether by winding-up of
the Company or otherwise and the Executive shall be offered
immediate employment with any company resulting from or formed or
acquired in connection with such reconstruction or amalgamation of
a similar nature to that hereby agreed on terms no less favourable
to him than those herein contained then
11
the Executive shall have no claim against the Company for
compensation or damages or otherwise howsoever arising out of such
determination.
16. DISCIPLINARY AND GRIEVANCE PROCEDURES
There are no specific disciplinary rules applicable to the
Executive's employment. If the Executive is dissatisfied with any
disciplinary decision taken in relation to him or has any grievance
relating to his employment he should submit particulars in writing
to the Board who will endeavour to resolve it to the satisfaction
of the Executive and the Company but in the event of any failure to
achieve such outcome the decision of the Board shall be final.
17. PRIOR ARRANGEMENTS
The Executive hereby covenants with the Company that he is not a
party to any agreement or arrangement (formal or informal legal or
moral) such as will or might preclude him from entering into this
Agreement or performing any of his obligations hereunder.
18. NOTICES AND PROCEEDINGS
18.1 Any notice under this Agreement shall be in writing and be signed
by or on behalf of the party giving it.
18.2 Any such notice may be served by leaving it at or sending it by
facsimile e-mail prepaid recorded delivery or registered post to
the address and for the attention of the relevant party as set out
in this Agreement or as otherwise notified from time to time in
accordance with the provisions of this Clause.
18.3 In the event of any action or proceedings (including arbitration
proceedings) being begun pursuant to or in respect of this
Agreement the parties hereto agree that service of the process by
which the action or proceedings is or are begun and of any and all
other documents relating to such action or proceedings shall
(without however preventing any party from utilising such other
modes of service as may for the time being be permitted by the
Rules of the Supreme Court 1965 or any amendment or reissue
thereof) be full and proper if effected in the manner and at the
address prescribed by the provisions of this Clause relating to
notices.
18.4 Any notice and/or any document relating to any action or
proceedings (including an originating process) so served by
facsimile e-mail or post shall be deemed to have been received:-
18.4.1 in the case of facsimile or e-mail 12 hours after the
time of despatch provided (in the case of facsimile) an
error-free transmission report or (in the case of
e-mail) no error message indicating failure to deliver
has been received by the sender; and
18.4.2 in the case of recorded delivery or registered post 24
hours from the time of posting if from and to an
address in the United Kingdom or Northern Ireland or
five days from the time of posting if from or to an
address elsewhere.
12
19. BENEFIT OF AGREEMENT
This Agreement shall be binding on and shall enure for the benefit
of the successors and assigns and personal representatives (as the
case may be) of each of the parties hereto.
20. ACCRUED RIGHTS
The termination of this Agreement howsoever caused shall be without
prejudice to any obligations or rights of any of the parties hereto
which shall have accrued prior to such termination and shall not
affect any provision of this Agreement which is expressly or by
implication provided to come into effect on or to continue in
effect after such termination.
21. GENERAL
21.1 This Agreement constitutes the entire agreement between the parties
hereto in respect of the matters dealt with herein and supersedes
any previous agreement or arrangement between the parties in
relation to such matters.
21.2 No variation of this Agreement shall be valid or effective unless
made by one or more instruments in writing signed by both of the
parties.
21.3 No failure to exercise and no delay in exercising on the part of
either of the parties hereto any right power or privilege hereunder
shall operate as a waiver thereof nor shall any single partial
exercise of any right power or privilege preclude any other or
further exercise thereof or the exercise of any other right power
or privilege.
21.4 The rights and remedies provided in this Agreement are cumulative
and are not exclusive of any rights or remedies otherwise provided
by law.
21.5 Notwithstanding that any provision of this Agreement may prove to
be illegal or unenforceable the remaining provisions of this
Agreement shall continue in full force and effect.
21.6 Any date or period mentioned in this Agreement may be extended by
agreement between the parties hereto (or such of the parties as may
be affected thereby) but subject thereto as regards any date or
period (whether or not extended as aforesaid) time shall not be of
the essence of this Agreement.
21.7 This Agreement is in substitution for all previous agreements
whether or not reduced to writing between the parties hereto
governing the terms and conditions of employment of the Executive
which shall be deemed to have been terminated by mutual consent on
the date upon which this Agreement is deemed to have commenced but
without prejudice to the intention of the Company and the Executive
that the employment of the Executive hereunder shall be deemed to
be a continuation of his employment with Reynard Composites Limited
which began on [ ] 1984.
22. GOVERNING LAW AND JURISDICTION
22.1 This Agreement shall be governed by and construed in accordance
with English Law.
13
22.2 Each of the parties hereto irrevocably agrees that the courts of
England and Wales shall have exclusive jurisdiction to hear and
determine any suit action or proceeding and to settle any disputes
which may arise out of or in connection with this Agreement and for
such purposes irrevocably submit to the jurisdiction of such
courts.
IN WITNESS whereof the parties have executed these presents as their deed the
day and year first above written.
14
EXECUTED as a DEED by )
REYNARD MOTORSPORT LIMITED )
by )
Director
Secretary/Director
SIGNED and DELIVERED as a Deed )
by the said XXXX XXXXX )
in the presence of:- )
