Exhibit 10.6
DATED 1st APRIL 1997
MORRIS ASHBY plc
- and -
P A BUCKLEY ESQ
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SERVICE AGREEMENT AS
CHIEF EXECUTIVE
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EVERSHEDS
SOLICITORS
10 NEWHALL STREET
BIRMINGHAM
B3 3LX
CONTENTS OF SERVICE AGREEMENT
CLAUSE PAGE
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1. Meaning of words used 1
2. Previous agreements 3
3. Appointment, term and notice 3
4. Duties 4
5. Place of work 4
6. House of work 5
7. Remuneration 5
8. Expenses 5
9. Motor car 5
10. Pension and other benefits 6
11. Holidays 7
12. Conflict of interest 7
13. Share dealings 8
14. Restrictive covenants 8
15. Confidentiality 12
16. Patents 13
17. Copyright 14
18. Incapacity 14
19. Termination 16
20. Deductions 17
21. Sale or reconstruction of the Company 18
22. Return of documents and property 18
23. Resignation as director 19
24. Rights following termination 19
25. Disciplinary and grievance procedures 20
26. Notices 20
27. Miscellaneous 20
THIS AGREEMENT is made on 1st April 1997 BETWEEN
(1) MORRIS ASHBY plc (Reg. No. 1598070) whose registered office is at
16 Freebournes Road, Wirtharm, Essex, CM8 3DX ("the Company") and
(2) PAUL ANTHONY BUCKLEY of Lothloren, The Ridge, Little Baddow, Chelmsford,
Essex ("the Director")
WHEREBY IT IS AGREED as follows:
MEANING OF WORDS USED
1.1 In this Agreement and the Schedule the following expressions have the
following meanings:
"Board" the Board of Directors of the Company from time to
time and any other person authorised by the Board as
its representative for the purposes of this Agreement;
"Group Company" any holding company for the time being of the Company
or any subsidiary for the time being of the Company
or of any such holding company (for which purpose
"holding company" and "subsidiary" have the meanings
ascribed to them by Section 736 of the Companies Act
1985 as amended by the Companies Act 1989);
"Group" the Company and all those Group Companies wherever
registered or incorporated for which the
Director performs duties and/or functions
pursuant to Clause 4;
"Commencement Date" 1st April 1997
"Financial Period" an accounting reference period of the Company
determined in accordance with the provisions
of Sections 224 and 226 of the Companies
Act 1985.
"the 1996 Act" the Employment Rights Act 1996;
"The London Stock Exchange" the International Stock Exchange of Great
Britain and the Republic of Ireland Limited;
"PAYE deductions" deductions made to comply with regulations
made under Section 203 Income and Corporation
Taxes Act 1988 and with any obligations to
deduct national insurance contributions;
"recognised investment exchange" has the meaning in Section 207 of the
Financial Services Act 1986
1.2 References herein to "Clauses", "sub-clauses" and "the Schedule" are to
clauses and sub-clauses of this Agreement and the Schedule to this Agreement
unless otherwise specified.
1.3 Unless otherwise required words denoting the singular include the plural
and vice versa.
1.4 References in this Agreement to statutory provisions include all
modifications and re-enactments of them and all subordinate legislation made
under them.
1.5 Clause headings are included in this Agreement for convenience only and
do not affect its construction.
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PREVIOUS AGREEMENTS
2.1 This Agreement contains the entire and only agreement and will govern
the relationship between the Company and the Director from the Commencement
Date in substitution for all previous agreements and arrangements whether
written, oral or implied between the Company or any Group Company and the
Director relating to the services of the Director all of which will be deemed
to have terminated by consent with effect from the Commencement Date. The
Director and the Company acknowledge that in entering into this Agreement
neither has relied on any representation or undertaking by the other whether
oral or in writing except as expressly incorporated in this Agreement.
APPOINTMENT, TERM AND NOTICE
3.1 The Company will employ the Director and the Director will serve the
Company as Chief Executive.
3.2 The said appointment will commence on the Commencement Date and will
continue thereafter unless and until the employment is terminated by either
party giving to the other not less than two years written notice ("the notice
period").
3.3 The Director agrees that at its absolute discretion the Company may
terminate the Director's employment under this Agreement with immediate
effect by paying to the Director, in full and final settlement of all claims
which he has or may have against the Company or any Group Company or any
director, employee or agent of the Company or any such Group Company under or
arising out of his employment with the Company or any such Group Company, the
termination of his employment or otherwise, in lieu of the notice period or
part of the notice period if at the Company's request the Director has worked
during part of the notice period a termination payment equal the salary
referred to in Clause 7.1 to which he would have been entitled during the
balance of the notice referred to in Clause 3.2.
3.4 Notwithstanding the provisions of Clause 3.2, the Director's employment
under this Agreement will automatically terminate on his 60th birthday.
3.5 The Director's continuous employment with the Company for the purposes
of the 1996 Act commenced on 19 March 1982. His employment with Morris Ashby
Casings
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Limiting counts for the purposes of the 1996 Act as part of the Director's
period of continuous employment.
DUTIES
4.1 The Director will carry out such duties and functions, exercise such
powers and comply with such instructions in connection with the business of
the Company and the Group Companies as the Board determines from time to
time. Except when prevented by illness, accident or holiday as provided below
the Director will devote the whole of his time, attention and skill to the
affairs of the Company and where appropriate the Group Companies and use his
best endeavours to promote their interests provided that without prejudice to
sub-clause 4.4 the Board may at any time require the Director to cease
performing and exercising all or any of such duties, functions or powers.
4.2 The Director will if and so long as he is so required by the Company
carry out duties on for and/or act as director, officer or employee of any
other Group Company. The duties attendant on any such appointment will be
carried out by the Director as if they were duties to be performed by him on
behalf of the Company under this Agreement.
4.3 The Director will at all times promptly give to the Board (in writing if
requested) all information, explanations and assistance that the Board may
require in connection with the business or affairs of the Company and the
Group and his employment under this Agreement.
4.4 The Company may at any time appoint any person or persons to act jointly
with the Director to discharge his duties and functions hereunder.
PLACE TO WORK
5. The Director will perform his duties principally at the Registered
office of the Company or with his prior consent at such other place of
business of the Company or of any Group Company as the Company requires
whether inside or outside the United Kingdom but the Company will not require
him to go to or reside anywhere outside the United Kingdom except for
occasional visits in the ordinary course of his duties.
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HOURS OF WORK
6. The Company's normal office hours are from 9am to 5pm Monday to Friday
but the Director will be required to work outside these hours without
additional remuneration in order to meet the requirements of the business and
for the proper performance of his duties.
REMUNERATION
7.1 The Company will pay the Director from the Commencement Date until 31
March 1998, a salary of (francs)75,000 per annum and from 1 April 1998, a
salary of (francs)150,000 per annum (or at such higher rate as may from time
to time be notified to him by the Board) which salary will accrue form day to
day and be payable in arrears by equal monthly instalments on the last day of
each month.
7.2 The Director's salary will be subject to upwards only reviews by the
Board which will be effective on and from 1st April in each year during the
Director's employment under this Agreement provided that the increase (if
any) of such salary will be matter to be decided at the Board's absolute
discretion.
7.3 The salary referred to in Clause 7.1 will be inclusive of any
director's fees to which the Director may be entitled as a director of the
Company or of any Group Company.
7.4 Until 31 March 1998, the Director will be entitled to the bonus (or
bonuses) set out in the Schedule whilst serving as a Director of the Company
or of any Group Company. The Director will also be entitled to PSBII in
relation to the performance of the Morris Ashby Castings Division of the
Company being a monthly bonus payable the following month to all permanent
employees of that Division in proportion to his monthly gross pay. As from
1 April 1998, the Director will be entitled to "the Group Bonds" as referred
to in the Schedule but not to "the Divisional Bonus" nor to PSBII.
EXPENSES
8. The Director 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
complies with the Company's then
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current guidelines relating to expenses and produces to the Company all
relevant vouchers in respect of such expenses.
MOTOR CAR
9.1 During the Director's employment under this Agreement and whilst the
Director is legally entitled to drive the Company will provide him with a
motor car in accordance with the Company's Car Policy as amended from time to
time for use in the performance of his duties under this Agreement and
commensurate with his status. The Company will pay all costs of road fund
license, insurance premiums and running expenses in respect of the motor car
included fuel, oil, maintenance and repairs.
9.2 The Director will be permitted reasonable use of the motor car for his
own private purposes (including use on holidays).
9.3 The Director will take good car of the motor car and procure that the
provisions and conditions of any policy of insurance relating to it are
observed in all respects and will be all times conform with all regulations
which may from time to time be imposed by the Company in regard to motor cars
provided by the Company for use by its officers or employees.
9.4 On the termination of his employment under this Agreement for any reason
the Director will immediately return the motor car, its keys and all
documents relating to it to the Company at its principal place of business or
as otherwise directed by the Company.
PENSION AND OTHER BENEFITS
10.1 The Director will be entitled to continue to be a member of the Morris
Ashby plc Scheme ("the Pension Scheme") subject to and upon the rules of the
Pension Scheme from time to time in effect. A copy of the rules of the
Pension Scheme can be obtained on written application to the Company
Secretary. There is a contracting out certificate in force in respect of the
Director's employment under the provisions of the Pensions Scheme Act 1993.
10.2 During his employment the Director will be entitled to participate at
the Company's expense in the Company's:
10.2.1 life insurance scheme;
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10.2.2 private medial expenses insurance scheme for the benefit of the
Director and his wife and all dependent children in full time education
under the age of 25;
subject to the rules of the said schemes from time to time (and any
replacement schemes provided by the Company) and subject to the Director (and
where appropriate his wife and dependent children) being eligible to
participate in or benefit from such schemes pursuant to their rules.
HOLIDAYS
11.1 In addition to normal public holidays the Director will be entitled to
25 working days' paid holiday in each holiday year such holiday to be taken
at such time or times as may be approved by the Board.
11.2 For the purposes of this Clause "holiday year" means the period form
1st January to 31st December in each year. Any holiday entitlement which is
not taken by the end of the holiday year to which it relates will be lost and
may not be carried forward.
11.3 The Director will be entitled to be paid in lieu of any holiday which
is untaken at the date on which his employment terminates for any reason. The
Company will not be entitled to recover from the Director a sum in respect of
any holiday taken in excess of the Director's entitlement during the year in
which him employment terminates.
CONFLICT OF INTERESTS
12.1 The Director will disclose promptly to the Board in writing all his
interests in any business other than that of the Company and the Group and
will notify the Board immediately of any change in his external interests.
Except with the written consent of the Board the Director will not during his
employment under this Agreement be directly or indirectly engaged, concerned
or interested whether as principal, servant or agent (on his own behalf or on
behalf of or in association with any other person) in any other trade,
business or occupation competing in any material respect with the business
for the time being of the Company or any Group Company other than the
business of the Company or any Group
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Company provided that the Director will not be precluded from being
interested for investment purposes only as a member, debenture holder or
beneficial owner of any stock, shares or debentures which are listed or dealt
in on a recognised investment exchange and which do not represent more than
five per cent of the total share or loan capital from time to time in issue
in such company.
12.2 The Director will not during his employment introduce to any other
person, firm, company or organisation business of any kind with which the
Company or any other Group Company for which he has performed services under
this Agreement is able to deal and he will not have any financial interest
in, or derive any financial or other benefit from, contracts or transactions
entered into by the Company or any other Group Company for which he has
performed services under this Agreement with any third party without first
disclosing such interest or benefit to the Board and obtaining its written
approval.
SHARE DEALINGS
13.1 The Director will comply (where relevant) with every rule of law, every
regulation of The London Stock Exchange and every requirement, recommendation
or regulation of the Company from time to time in force in relation to
dealings with shares, debentures or other securities of the Company or any
Group Company and unpublished price-sensitive information affecting the
shares, debentures or other securities of any such company. In relation to
overseas dealings, the Director will also comply with all laws of the state
and all regulations of the stock exchange, market or dealing system in which
such dealings take place.
13.2 The Director will not (and will procure so far as he is able that his
wife and children do not) deal or become or cease to be interested (within
the meaning of Part I of Schedule XIII to the Companies Act 1985) in any
securities of the Company except in accordance with the Model Code of The
London Stock Exchange for transactions in securities by directors and others
and any legislation, regulations or rules for securities transactions
applicable from time to time.
RESTRICTIVE COVENANTS
14.1 In this Clause 14 the following expressions have the following meanings:
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"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;
"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 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 of
supply of Relevant Products or Services
and in each case with whom or which the Director
was directly concerned or connected or of whom or
which the Director had personal knowledge during
the Relevant Period in the course of his
employment hereunder;
"Relevant Group Company" any Group Company (other than the Company) for
which the Director 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;
"Relevant Products or products or services which are of the same kind as
Services" 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 and with which sale or
supply the Director was directly concerned or
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connected or of which he had personal knowledge
during the Relevant Period in the course of his
employment hereunder;
"Termination Date" the date on which the Director's employment
under this Agreement terminates and references to
"from the Termination Date" mean from and
including the date of termination.
"Restricted Territory" The United Kingdom of Great Britain and Northern
Ireland.
14.2 The Director will not without the prior written consent of the Company
directly or indirectly and whether alone or in conjunction with or on behalf
of any other person and whether as a principal, shareholder, director,
employee, agent, consultant, partner or otherwise:
14.2.1. within the Restricted Territory for a period of 12 months from
the Termination Date be engaged, concerned or interested in, or
provide technical, commercial or professional advice to, any
other business which supplies Relevant Products or Services in
competition with the Company or any Relevant Group Company
provided that this restriction does not apply to prevent the
Director from holding shares or other securities in any company
which is quoted, listed or otherwise dealt in on a recognised
investment exchange or other securities market and which confer
not more than 5% of the votes which could be cast at a general
meeting of such company;
14.2.2 within the Restricted Territory for a period of 12 months from
the Termination Date be engaged, concerned or interested in any
business which at any time during the Relevant Period has
supplied Relevant Products or Services to the Company or any
Relevant Group Company or is or was at any time during the
Relevant Period a Relevant Customer of the Company or any
Relevant Group Company if such engagement, concern or interest
causes or would cause the supplier to cease or materially
reduce its supplies to the Company (or any Relevant Group
Company as the case may be) or the Relevant Customer to cease or
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materially to reduce its orders or contracts with the Company or
any Relevant Group Company; or
14.2.3 for a period of 12 month from the Termination Date so as to
compete with the Company or any Relevant Group Company canvass,
solicit or approach or cause to be canvassed, solicited or
approached any Relevant Customer for the sale or supply of
Relevant Products or Services or endeavour to do so; or
14.2.4 for a period of 12 months from the Termination Date so as to
compete with the Company or any Relevant Group Company deal or
contract with any Relevant Customer in relation to the sale or
supply of any Relevant Products or Services, or endeavour to do
so; or
14.2.5 for a period of 12 months from the Termination date solicit,
induce or entice away from the Company or any Relevant Group
Company or, in connection with any business in or proposing to
be in competition with the Company or any Relevant Group
Company, employ, engage or appoint or in any way cause to be
employed, engaged or appointed a Critical Person whether or not
such person would commit any breach of his or her contract of
employment or engagement by leaving the service of the Company
or any Relevant Group Company;
14.2.6 use in connection with any business any name which includes the
name of any Group Company or any colourable imitation of it.
14.3 Whilst the restrictions in this Clause 14 (on which the Director has
had an opportunity to take independent advice as the Director hereby
acknowledges) are regarded by the parties as fair and reasonable, it is hereby
declared that each of the restriction in this Clause 14 is intended to be
separate and severable. If any restriction is held to be unreasonably wide
but would be valid if part of the wording (including in particular but without
limitation the defined expressions referred to in Clause 14.1) were deleted,
such restriction will apply with so much of the wording deleted as may be
necessary to make it valid.
14.4 If the Director breaches any of the provisions in this Clause 14 the
Company will be entitled by written notice to the Director to extend the
period during which the provisions
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of Clause 14 which have been breached apply by an equivalent period to that
during which the breach or breaches have continued, such additional period to
commence on the date on which the said period would have otherwise expired.
The Director hereby agrees that if the Company so extends the period of any
such restriction, this will not prejudice the right of the Company to apply
to the Courts for injunctive relief in order to compel the Director to comply
with the provisions of this Clause 14 and/or damages, as the case may be.
14.5 For the purposes of Clause 14 and 15 the Company has entered into this
Agreement as agent for and trustee of all Relevant Group Companies.
14.6 If the Director applies for or is offered a new employment, appointment
or engagement, before entering into any related contract the Director will
bring the terms of this Clause 14 and Clauses 3,4,15,16,17 and 19.2 to the
attention of a third party proposing directly or indirectly to employ,
appoint or engage him.
CONFIDENTIALITY
15.1 The Director acknowledges that in the ordinary course of his employment
he will be exposed to information about the Company's business and the
business of other Group Companies and that of the Company's and the Group
Companies' suppliers and customers which amounts to a trade secret, is
confidential or is commercially sensitive and which may not be readily
available to others engaged in a similar business to that of the Company or
any of the Group Companies or to the general public and which if disclosed
will be liable to cause significant harm to the Company or such Group
Companies. The Director has therefore agreed to accept the restrictions in
this Clause 15.
15.2 Without prejudice to Clause 15.3 or 15.4 and subject to Clause 15.3 the
Director will not during the period of his employment with the Company:
15.2.1 sell or seek to sell to anyone information acquired by him in
the course of his employment with the Company;
15.2.2 obtain or seek to obtain any financial advantage (direct or
indirect) from disclosure of such information.
15.3 The Director will not either during his employment or after its
termination without limit in time for his own purposes or for any purposes
other than those of the Company or any Group Company (for any reason and in
any manner) use of divulge or communicate to
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any person, firm, company or organisation except to those officials of any
Group Company whose province it is to know the same any secret or
confidential information or information constituting a trade secret acquired
or discovered by him in the course of his employment with the Company
relating to the private affairs or business of the Company or any Group
Company or their suppliers, customers, management or shareholders.
15.4 The provisions of this Clause 15 are without prejudice to the duties and
obligations of the Director to be implied into this Agreement at common law.
In addition to the restrictions in Clause 14 and this Clause 15 the Director
hereby agrees that at the request and expense of the Company he will enter
into a direct agreement or undertaking with any such Group Company whereby he
will accept restrictions and provisions corresponding to the restrictions and
provisions in Clause 14 and this Clause 15 (or such of them as may be
appropriate in the circumstances) in relation to such information and such
area and for such period as such Group Company may reasonably require for the
protection of its legitimate interests.
PATENTS
16.1 The Director must disclose immediately to the Company any discovery or
invention or secret process or improvement in procedure made or discovered by
the Director during his employment in connection with or in any way affecting
or relating to the business of the Company or any Group Company or capable of
being used or adapted for use in or in connection with any such company
("Inventions") which Inventions will belong to and be the absolute property
of the Company or such other person, firm, company or organisation as the
Company may require.
16.2 If requested by the Board (whether during or after the termination of
his employment) the Director will at the expense of the Company apply or join
in applying for letters patent or other similar protection in the United
Kingdom or any other part of the world for all Inventions and will do
everything necessary (including executing documents) for vesting letters
patent or other similar protection when obtained and all right and title to
and interest in all Inventions in the Company absolutely and as sole
beneficial owner or in such other person, firm, company or organisation as
the Company may require.
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16.3 The Director will (both during and after the termination of his
employment) at the Company's expense anywhere in the world and at any time
promptly do everything (including executing documents) that may be required
by the Board to defend or protect for the benefit of the Company all
Inventions and the right and title of the Company to them.
16.4 The Director hereby irrevocably authorises the Company to appoint a
person to execute any documents and to do everything necessary to effect his
obligations under this Clause 16 on his behalf.
16.5 The provisions of Clause 16.1 to 16.3 (inclusive) are without prejudice
to the provisions of the Patents Act 1977.
COPYRIGHT
17.1 The entire copyright and all similar rights (including future
copyright, the right to register trade marks or service marks and the right
to register designs and design rights) throughout the world in works of any
description produced by the Director in the course of or in connection with
his employment ("Works") will vest in and belong to the Company absolutely
throughout the world for the full periods of protection available in law
including all renewals and extensions.
17.2 The Director will (both during and after the termination of his
employment) at the Company's request and expense anywhere in the world and at
any time promptly do everything (including executing documents) that may be
required by the Board to assure, defend or protect the rights of the Company
in all Works.
17.3 The Director hereby irrevocably authorises the Company to appoint a
person to execute any documents and to do everything necessary to effect the
obligations of the Director under this Clause 17 on the Director's behalf.
17.4 For the purposes of Clause 16 and Clause 17 the Director hereby
irrevocably and unconditionally waives in favour of the Company the moral
rights conferred on him by Chapter IV Part 1 of the Copyright Designs and
Patents Act 1998 in respect of any Inventions or Works in which the copyright
is vested in the Company under Clause 16, this Clause 17 or otherwise.
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INCAPACITY
18.1 If the Director 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 seven days or more he will produce to
the Company a medical certificate to cover the duration of such absence.
18.2 Subject to the rest of Clause 18 and to 19.1.7 and subject to the
receipt of the appropriate certificates in accordance with Clause 18.1, if
the Director is absent form his duties as a result of illness or injury he
will be entitled to payment of his salary at the full rate in respect of such
illness or injury for a period (in total) of no more than 26 weeks in any
period of 12 months (whether the absence is intermittent or continuous).
Thereafter the Director will not be entitled to any further payment from the
Company or any other Group Company (other than Statutory Sick Pay) until he
has returned to work and completed six months' continuous service with no
absences from work other than agreed holidays.
18.3 If the Director is absent from work because of any injury or condition
(physical or mental and whether or not sustained in the course of his duties)
caused wholly or partly by any act or omission of any person, firm, company
or organisation (other than the Company or any Group Company) from whom the
Director may be or become entitled to recover damages or compensation, any
sum paid by the Company to the Director in respect of the said absence will
be an interest free loan (subject to any limit imposed under the Companies
Act 1985 or other relevant legislation) to the Director repayable immediately
by the Director to the Company on recovery by him of any such damages or
compensation.
18.4 If the Director has been absent from work because of any injury or
condition caused wholly or partly by the Company or any Group Company or any
person for whom the Company or any Group Company is vicariously liable and
for which the Director may be or become entitled to recover damages or
compensation, any such damages or compensation payable will be reduced by the
amount of any sick pay (statutory or otherwise) paid to him any by the
pension received or receivable by him in the period in respect of which such
damages or compensation are calculated.
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18.5 The remuneration paid under Clause 18.2 will include any Statutory Sick
Pay payable and when this is exhausted will be reduced by the amount of any
Social Security Sickness Benefit or other benefits recoverable by the
Director (whether or not recovered).
18.6 Whether or not the Director is absent by reason of sickness, injury or
other incapacity the Director will at the request of the Board agree to have
a medical examination performed by a doctor appointed and paid for by the
Company and the Director hereby authorises the Board to have unconditional
access to any report or reports (including copies) produced as a result of
any such examination as the Board may from time to time require and
entitlements to salary pursuant to Clause 18.2 will be conditional on the
Director complying with the terms of this Clause 18.6.
TERMINATION
19.1 The Company may terminate the Director's employment immediately by
summary notice in writing (notwithstanding that the Company may have allowed
any time to elapse or on a former occasion may have waived its rights under
this Clause) if he:--
19.1.1 commits, repeats or continues any breach of any part of this
Agreement or his obligations under it;
19.1.2 in the performance of his duties under this Agreement or
otherwise commits any act of gross misconduct or serious incompetence
or does or omits to do anything else which is prejudicial to the
interests of the Company or any Group Company;
19.1.3 adversely prejudices or because of his behaviour is likely in
the reasonable opinion of the Board to prejudice adversely the
interests or reputation of the Director, the Company or any Group
Company;
19.1.4 has committed any criminal offence involving dishonesty or
violence other than an offence which does not in the reasonable opinion
of the Board affect his position under this Agreement;
19.1.5 becomes bankrupt or enters into or make any arrangement or
composition with or for the benefit of his creditors generally;
19.1.6 becomes of unsound mind;
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19.1.7 becomes incapacitated from performing all or any of his duties
under this Agreement by illness, injury or otherwise for a period
exceeding (in total) 26 weeks (or such longer period as the Company may
agree) in any period of 12 months from performing all or any of his
duties under this Agreement; or
19.1.8 becomes prohibited by law from being a director of a company or
if the Director ceases to be a director of the Company without the
consent or concurrence of the Company.
19.2 Without prejudice to Clause 4.1 after notice of termination has been
given by either party pursuant to Clause 3.2 or if the Director seeks to or
indicates an intention to resign as a director of the Company or any Group
Company or terminate his employment, provided that the director continues to
be paid and enjoys his full contractual benefits until his employment
terminates in accordance with the terms of this Agreement, the Board may in
its absolute discretion without breaking the terms of this Agreement or
giving rise to any claim against the Company or any Group Company for all or
part of the notice period:
(i) exclude the Director from the premises of the Company and/or any
Group Company;
(ii) require him to carry out specified duties (consistent with the
Director's status, role and experience for the Company) other than those
referred to in Clause 4 or to carry out no duties;
(iii) announce to directors, employees, suppliers and customers and
The London Stock Exchange that he has been given notice of termination
or has resigned (as the case may be);
(iv) instruct the Director not to communicate orally or in writing
with suppliers, customers, directors, employees, agents or
representatives of the Company or any Group Company until his
employment hereunder has terminated.
19.3 Before and after termination of the Director's employment, the Director
will provide the Company and/or any Group Company with assistance regarding
matters of which he has knowledge and/or experience in any proceedings or
possible proceedings in which the Company and/or Group Company is or may be a
party.
19.4 The Director agrees that at the expense and request of the Company and
in any event on termination of his employment he will transfer or procure the
transfer of all shares
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held by him in trust or as a nominee by virtue of his employment with the
Company to such person or persons as the Company may direct. If the Director
fails to do so within seven days of any such request or the termination of
his employment (as the case may be) the Company is irrevocably authorised to
appoint a person or person to execute all necessary transfer forms and other
documentation on his behalf.
DEDUCTIONS
20. The Director hereby 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 Director
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 Director.
SALE OF RECONSTRUCTION OF THE COMPANY
21. The Director will have no claim against the Company or any Group Company
in respect of the termination (by operation of law or otherwise) of his
employment under this Agreement on or in connection with the sale of the
whole or a substantial part of the business or undertaking of the Company or
on or in connection with the sale by the Company of any Group Company or on
or by reason of the liquidation of the Company for the purposes of
amalgamation or reconstruction (whether or not by reason of insolvency) if he
is offered employment on no less favourable terms than those contained in
this Agreement (apart from the identity of the employer) with any person,
firm, company or organisation which acquires such Group Company or which
acquires the whole or a substantial part of the undertaking or business of
the Company as a result of such sale or of such amalgamation or
reconstruction. For the purposes of this Clause "substantial part" means 51%.
RETURN OF DOCUMENTS AND PROPERTY
22. On termination of his employment for any reason the Director will
immediately deliver up to the Company all property (including but not limited
to documents and software, credit cards, keys and security passes) belonging
to it or any Group Company in the Director's possession or under his control.
Documents and software include (but are not
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limited to) correspondence, diaries, address books, databases, files,
reports, minutes, plans, records, documentation or any other medium for
storing information. The Director'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.
RESIGNATION AS DIRECTOR
23.1 The Director will on termination of his employment for any reason at the
request of the Board give notice resigning immediately without claim for
compensation (but without prejudice to any claim he may have for damages for
breach of this Agreement):
23.1.1 as a director of the Company and all such Group Companies of
which he is a director; and
23.1.2 all trusteeships held by him of any pension scheme or other
trusts established by the Company or any Group Company or any other
company with which the Director has had dealings as a consequence of his
employment with the Company.
23.2 If notice pursuant to Clause 23.1 is not received by the relevant
company within seven days of a request by the Company, the Company is
irrevocably authorised to appoint a person to execute any documents and to do
everything necessary to effect such resignation or resignations on the
Director's behalf.
23.3 Except with the prior written agreement of the Board, the Director will
not during his employment under this Agreement resign his office as a
director of the Company or any Group Company.
23.4 The Director's appointment as a director of the Company or any other
Group Company will be subject to the Articles of Association from time to
time of the relevant company.
RIGHTS FOLLOWING TERMINATION
24. The termination of the Director's employment under this Agreement will
not affect any of the provisions of this Agreement which expressly operate or
lawfully have effect after termination and will not prejudice any right of
action already accrued to either party in respect of any breach of any terms
of this Agreement by the other party.
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DISCIPLINARY AND GRIEVANCE PROCEDURES
25.1 The disciplinary procedure which is applicable to the Director is set
out in the Company Rules, together with miscellaneous provisions which the
Director is required to observe and are incorporated into this Agreement.
25.2 If the Director has a grievance in relation to his employment or is
dissatisfied with a disciplinary decision against him he may apply in writing
to the Chairman of the Board whose decision will be final.
NOTICES
26. Notice under this Agreement by the Director to the Company should be
addressed to the Company and left at its registered office or is sent by
first class recorded delivery post to its registered office and notices given
by the Company to the Director should be served personally or sent by first
class recorded delivery or sent by facsimile transmission to his usual or
last known place of residence in England and in case of service by post the
day of service will be 48 hours after posting.
MISCELLANEOUS
27.1 This Agreement shall be governed by and interpreted in accordance with
the law of England and Wales.
27.2 The parties to this Agreement submit to the exclusive jurisdiction of
the English Courts in relation to any claim, dispute or matter arising out of
or relating to this Agreement.
27.3 Any delay by the Company in exercising any of its rights under this
Agreement will not constitute a waiver of such rights.
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THIS AGREEMENT has been signed on behalf of the Company by a director and
its secretary/two directors and executed and delivered as a deed by the
Director on the date set out at the beginning.
SIGNED by David Stephen Haggett and )
David Ian White for and on behalf of ) /s/ David S. Haggett
THE COMPANY ) -------------------------------
) Director
/s/ David I. White
-------------------------------
Director/Secretary
EXECUTED AND DELIVERED as a )
Deed by THE DIRECTOR in the ) /s/ [illegible]
presence of: ) -------------------------------
) [Director]
Witness:
/s/ Gemma Dow
Signature: --------------------------
/s/ Gemma Dow
Name: -------------------------------
11 Norfolk Close
Address: ----------------------------
Maloon, Essex, CM96BA
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SCHEDULE
BONUSES
1.1 In this Schedule:
"Financial Period" means an accounting reference period of the
Company determined in accordance with the
provisions of Section 224 and 226 of the
Companies Act 1985;
"Operating Division" means the Morris Ashby Castings division of
the Company operating from Witham, Essex
"Relevant Companies" means the Company and all Group Companies;
"Group" means all Relevant Companies
"Divisional Profits" means the unaudited trading profits of the
Operating Division LESS the sum of pound
517,000 ("the Divisional Threshold") as shown
in or ascertained from the Management Accounts
of the Operating Division for a Financial
Period but before deducting any management
charges except for services specifically
provided.
"Divisonal Bonus" means 3% of the Divisional Profits;
"Trading Accounts" means the audited profits and loss account
and balance sheet of the Group for a
Financial Period consolidated in accordance
with generally accepted accounting principles
and practices;
"Group Profits" means the trading profits of the Group as
shown in or ascertained from the Trading
Accounts AFTER CHARGING
(i) all relevant expenses including any
Divisional Bonus payable to any director of
the Company and/or of the Relevant Companies
(ii) all amounts written off in respect of
depreciation and amortisation.
(iii) variable allowances for or provisions
in respect of bad or doubtful debts
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(iv) the amount of any interest paid or payable
by the Company and/or the Relevant Companies
BUT BEFORE
(i) adding or deducting any sums in respect of
SSAP 24
(ii) deducting corporation tax, income tax and
any other tax which may be imposed on or by
reference to profits
(iii) carrying any sum or sums to reserves
(iv) deducting any Group Bonuses payable to any
director of the Company and/or the Relevant
Companies.
"Capital Employed" means the aggregate of the issued share capital
and reserves of the Company as shown in the
Trading Accounts.
"ROCE" means the ratio of Trading Profits to Capital
Employed expressed as a percentage.
"Group Threshold" means (pounds)725,000 of Group Profits provided
that if ROCE shall be greater than 25% or shall
fall below 25% in any Financial Period then the
Group Threshold for that Financial Period shall
be devalued or increased (as the case may be) by
(pounds)25,000 for each 1% movement in ROCE so
that (for example) if ROCE shall be 30% the
Group Threshold shall be (pounds)600,000 and if
ROCE shall be 20% the Group Threshold shall be
(pounds)850,000.
"Group Bonus" means 2.3% of the Group Profits above the Group
Threshold
"Bonuses" means the Divisional Bonus and the Group Bonus
taken together.
1.2 In addition to his salary the Director will be entitled to Bonuses in
respect of each Financial period from 1 April 1997.
1.3 The amount of the Bonuses (if any) payable to the Director in respect of
(or calculated by reference to) a Financial Period of more or less than
365 days will be calculated by increasing or decreasing all relevant
figures (including the Divisional Threshold and the Group Threshold) for
the relevant Financial Period in the proportion to which the number of
days in that Financial Period bears to 365.
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1.4 The Company will, within 14 days after the audited Trading Accounts for
each Financial Period have been prepared, deliver to the Director a
statement showing the amount of the Divisional Profits and the Group
Profits for such Financial Period and the amounts (if any) of Divisional
Bonus and Group Bonus payable to the Director which will become due and
payable within 14 days after that.
1.5 In respect of any Financial period during the currency of which the
Employment of the Director terminates, the amount of Bonus (if any)
payable to the Director shall be a rateable proportion of the bonus
(calculated from the date of commencement or to the date of termination
of his employment as that date may be) which he would have received if
his employment hereunder had existed or continued for the whole of that
Financial Period.
1.6 The Divisional Threshold will be adjusted each year (commencing at 31st
March 1999 when compared with 31st March 1998) in accordance with rises
in the Retail Prices Index.
1.7 Any dispute between the Company and the Director concerning the amount
of the Bonuses will be referred (at the request of either party and at
the expense of the Company) to the auditors for the time being of the
Company and a chartered accountant appointed by the Director or, if such
auditors and accountant fail to agree, to a person or persons nominated
by the President for the time being of the Institute of Chartered
Accountants in England and Wales on the application of either party. The
joint certificate of such auditor and accountant or the decision of such
nominated person will be final and binding on the parties and in giving
the same they or he (as the case may be) will be deemed to be acting as
experts and not as arbitrators and neither the Arbitration Acts 1950
to 1979 nor any statutory modification or re-enactment thereof for the
time being in force will apply.
1.8 The Director will be entitled to be paid Bonuses in respect of the
period to 31st March 1997 on the basis of the schemes previously
operated by the Company.
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