EXHIBIT 10.9
Dated 2 NOVEMBER 2018
(1) RENALYTIX AI PLC
(2) FERGUS FLEMING
DIRECTORS SERVICE AGREEMENT
Berry Smith
Haywood House
Dumfries Place
Cardiff
CF10 3GA
THIS AGREEMENT is made the 2 day of November 2018
BETWEEN:
(1) RENALYTIX AI PLC Registered Number 11257655 whose registered office is at Avon House, 19 Stanwell Road, Penarth, Cardiff CF64 2EZ (“the Company”); and
(2) FERGUS FLEMING of 12 Talbots Grove, Freshford Road, Kilkenny, R95 C99E (“the Executive”).
Board means the Board of Directors of the Company from time to time including any committee of the Board duly appointed by it and any representative of the Board duly appointed by it.
Commencement date means 1 November 2018.
Conditions means the conditions to Completion, being the matters set out in clause 2.
Continuous employment means the date from which the Executive began the period of continuous employment defined by s210-219 Employment Rights Act 1996 with the Company or its predecessors.
Group Company means any parent undertaking or subsidiary undertaking or any associated company from time to time of the Company (for which purpose “parent undertaking” and “subsidiary undertaking” are to be defined in accordance with section 1162 of the Companies Act 2006 and associated company means any company which any such parent undertaking or subsidiary undertaking holds or controls more than 20 per cent of the equity share capital).
Listing means the successful application and admission of all or any of the shares in the capital of the Company, on the AIM market operated by the London Stock Exchange plc, or to any recognised investment exchange (as defined in section 285 of the Financial Services and Markets Act 2000 (as amended)).
Longstop Date means 31st December 2018 or such later date as may be agreed in writing by the Company and the Executive.
Termination date means the date on which the Executive’s employment under this Agreement terminates and references to “from the Termination Date” mean from and including the date of termination.
provided that, in all circumstances, any such interest under clause 6.1.1 or 6.1.2 shall not conflict with the business interests of the Company or any Group Company and which will not require the Executive to devote such time as would be inconsistent with his obligations under this Agreement.
The Executive will perform his duties principally from Kilkenny, Ireland but may from time to time be required to travel both inside and outside Ireland and the United Kingdom in the course of his duties. For the avoidance of doubt, the Company will not require the Executive to change his place of residence without his prior consent.
In signing this Agreement, the Executive agrees that he has no standard hours of work and he is expected to work such hours (including at weekends) as may be reasonably necessary to properly fulfil his duties. The parties agree that in view of the Executive’s seniority and managerial duties and responsibilities, his working time cannot be measured and accordingly, that his employment falls within the scope of Regulation 20 of the Working Time Regulations.
11.1 Provided that the Executive holds a current driving licence the Executive shall receive a car allowance for use of the Executive’s own car of €5,000.00 a year which shall be payable together with and in the same manner as the salary in accordance with clause 9.1. The car allowance shall not be treated as part of the basic salary for any purpose and shall not be pensionable.
11.2 The Executive shall immediately inform the Company if he is disqualified from driving and shall cease to be entitled to receive the allowance under clause 11.1.
The Executive will be reimbursed all out of pocket expenses reasonably and properly incurred by him in the performance of his duties under this Agreement on hotel, travelling, entertainment and other similar items provided that he produces to the Company satisfactory evidence of expenditure.
If the Executive is absent from his duties as a result of illness or injury he will notify the Company Secretary as soon as possible and complete any self‑certification forms which are required by the Company. If the incapacity continues for a period of 7 days or more he will produce to the Company a medical certificate to cover the duration of such absence.
“Critical Person” | any person who was an employee, agent, director, consultant or independent contractor employed, appointed or engaged by the Company or any Relevant Group Company at any time within the Relevant Period who by reason of such employment, appointment or engagement and in particular his/her seniority and expertise or knowledge of trade secrets or confidential information of the Company or any Group Company or knowledge of or influence over the clients, customers or suppliers of the Company or any Group Company is likely to be able to assist or benefit a business in or proposing to be in competition with the Company or any Relevant Group Company; |
“Products or Services” | products or services which are of the same kind as or of a materially similar kind to or competitive with any products or services sold or supplied by the Company or any Relevant Group Company within the Relevant Period; |
“Relevant Customer” | any person, firm, company or organisation who or which at any time during the Relevant Period is or was: |
| (i) negotiating with the Company or a Relevant Group Company for the sale or supply of Relevant Products or Services; or |
| (ii) a client or customer of the Company or any Relevant Group Company for the sale or supply of Relevant Products or Services; or |
| (iii) in the habit of dealing with the Company or any Relevant Group Company for the sale or supply of Relevant Products or Services |
| and in each case with whom or which the Executive was directly concerned or connected or of whom or which the Executive had personal knowledge during the Relevant Period in the course of his employment; |
“Relevant Group Company” | any Group Company (other than the Company) for which the Executive has performed services under this Agreement or for which he has had operational/management responsibility at any time during the Relevant Period; |
“Relevant Period” | the period of 12 months immediately before the Termination Date or (where such provision is applied) the commencement of any period of exclusion/garden leave pursuant to clause 19.3 if earlier; |
“Relevant Products or Services” | Products or Services with which sale or supply the Executive was directly concerned or connected during the Relevant Period in the course of his employment. |
On termination of this agreement for any reason (or earlier if requested) the Executive will immediately deliver up to the Company all property (including but not limited to any hardware, documents and software, credit cards, mobile phone, keys and security passes) belonging to it or any Group Company in the Executive’s possession or under his control. Documents and software include (but are not limited to) correspondence, diaries, address books, databases, files, reports, minutes, plans, records, documentation or any other medium for storing information. The Executive’s obligations under this clause include the return of all copies, drafts, reproductions, notes, extracts or summaries (however stored or made) of all documents and software. The Company may withhold any monies then owing to the Executive in any respect pending him providing, if so requested, his written undertaking that he has complied with this obligation.
The Executive authorises the Company to deduct from his remuneration (which for this purpose includes salary, pay in lieu of notice, commission, bonus, holiday pay and sick pay) all debts owed by the Executive to the Company or any Group Company, including but without limitation the balance outstanding of any loans (and interest where appropriate) advanced by the Company to the Executive.
If the Executive’s employment by the Company under this Agreement is terminated by reason of the liquidation of the Company for the purposes of reconstruction or amalgamation or as part of any arrangement (not involving insolvency) for the reconstruction, amalgamation or transfer of the undertaking of the Company and the Executive is offered employment with the reconstructed or amalgamated company or transferee of the undertaking on terms generally not less favourable than the terms of this Agreement then (whether or not he accepts the offer) the Executive shall have no claim against the Company in respect of the termination of his employment by the Company.
The Executive acknowledges and agrees that the Company may monitor and/or record the Executive’s communications (including but not limited to e-mails, Internet access and telephone communications) during the Employment. The Executive agrees to abide, at
all times, with any relevant policy or procedure issued by the Company (or any Group Company) from time to time.
Notices under this Agreement by the Executive to the Company should be addressed to the Company and left at its registered office or sent by first class post or by facsimile transmission or other form of electronic delivery to its registered office and notices given by the Company to the Executive should be served personally or sent by first class post or sent by facsimile transmission or other form of electronic delivery to his usual or last known place of residence. In case of service by post, the day of service will be 72 hours after posting and in the case of facsimile transmission or other electronic delivery the day of service will be the day of transmission by the sender.
Apart from the provisions of this Agreement which are expressly or impliedly entered into by the Company for itself and as agent of and trustee for any Group Company the parties do not intend that this Agreement should confer any right or benefit on any third party.
THIS AGREEMENT has been executed as a deed and is delivered and takes effect on the date stated at the beginning of it.
Executed as a deed by
in the presence of: /s/ O. James Sterling_ SIGNATURE OF WITNESS NAME: O. James Sterling ADDRESS: [***] OCCUPATION: CFO |
/s/ James McCullough Director
|
Signed as a deed by Fergus Fleming
in the presence of: /s/ O. James Sterling_ SIGNATURE OF WITNESS NAME: O. James Sterling ADDRESS: [***] OCCUPATION: CFO |
/s/ Fergus Fleming_________ SIGNATURE OF EXECUTIVE |