DATED 8th December 2006 Flex Fuels Energy Limited and Gordon Alan Ewart EMPLOYMENT AGREEMENT Solicitors and registered Foreign Lawyers Regulated by the Law Society
EXHIBIT
10.8
DATED
8th
December
2006
Flex
Fuels Energy Limited
and
Xxxxxx
Xxxx Xxxxx
_____________________________
_____________________________
Solicitors
and registered Foreign Lawyers
Regulated
by the Law Society
1
CONTENTS
|
1.
|
DEFINITIONS
|
1
|
|
2.
|
APPOINTMENT
|
1
|
|
3.
|
TERM
|
1
|
|
4.
|
DUTIES
|
1
|
|
5.
|
HOURS
AND PLACE OF WORK
|
1
|
|
6.
|
REMUNERATION
|
1
|
|
7.
|
DEDUCTIONS
|
1
|
|
8.
|
EXPENSES
|
1
|
|
9.
|
HOLIDAYS
|
1
|
|
10.
|
SICKNESS
BENEFITS
|
1
|
|
11.
|
OTHER
BENEFITS
|
1
|
|
12.
|
PENSION
|
1
|
|
13.
|
RESTRICTIONS
ON OTHER ACTIVITIES BY THE EXECUTIVE
|
1
|
|
14.
|
CONFIDENTIAL
INFORMATION AND COMPANY DOCUMENTS
|
1
|
|
15.
|
INVENTIONS
AND OTHER INTELLECTUAL PROPERTY
|
1
|
|
16.
|
TERMINATION
|
1
|
|
17.
|
RESTRICTIVE
COVENANTS
|
1
|
|
18.
|
DISCIPLINARY
AND GRIEVANCE PROCEDURES
|
1
|
|
19.
|
DATA
PROTECTION
|
1
|
|
20.
|
NOTICES
|
1
|
|
21.
|
FORMER
AGREEMENTS
|
1
|
|
22.
|
GARDEN
LEAVE
|
1
|
|
23.
|
CHOICE
OF LAW AND SUBMISSION TO JURISDICTION
|
2
THIS
AGREEMENT is dated 8th
December
2006 and is made BETWEEN:
|
(1)
|
Flex
Fuels Energy Limited (xxx no. 6003328), a corporation incorporated
and
registered in accordance with the laws of the United Kingdom, USA
and
having its principal office at 00
Xx. Xxxx Xxx, Xxxxxx, XX0 0XX
and;
|
|
(2)
|
Xxxxxx
Xxxx Xxxxx, 000 Xxxxxxxxxxx Xxxxxx, Xxxxxx XX00 0XX (the
“Executive”)
|
IT
IS
AGREED as follows:
| 1. |
Definitions
|
| 1.1 |
In
this Agreement unless the context otherwise
requires:
|
| (a) |
the
following expressions have the following
meanings:
|
“Associated
company” means an associated company (within the meaning of section 416(1)
Income and Corporation Taxes Act 1988) of the Company.
The
“Board” means the board of directors for the time being of the Company and any
committee of the board of directors duly authorised by it.
“Confidential
Information” shall mean technical data including Technical know how, project
interpretation including financial analysis, details of customers and their
requirements, purchasing and supply agreements, the prices charged to and terms
of business with customers, customer data bases, other customer information,
business models, information relating to arrangements with banks and other
intermediaries, marketing plans and sales forecasts, financial information,
results and forecasts (save to the extent that these are included in published
audited accounts),any proposals relating to the acquisition or disposal of
a
company or business or any part thereof or to any proposed expansion or
contraction of activities, details of employees and officers and of the
remuneration and other benefits paid to them, information relating to research
activities, inventions, secret processes, designs, formulae and product lines,
any information which the Executive is told is confidential and any information
which has been given to the Company or any Group Company in confidence by
customers, suppliers or other persons.
The
“Employment” means the Executive’s employment under this Agreement.
“Group
Company” and “Group” means the Company, its ultimate holding company and any
subsidiary or associated company of the Company or its ultimate holding
company.
“Subsidiary”
and “holding company” have the meanings given to them in section 736 of the
Companies Xxx 0000 as amended.
| (b) |
References
to clauses, sub-clauses and schedules are unless otherwise stated
to
clauses and sub-clauses of and schedules to this
Agreement;
|
| (c) |
The
headings to the clauses are for convenience only and shall not affect
the
construction or interpretation of this
Agreement;
|
3
| (d) |
Any
references, express or implied, to statutes or statutory provisions
shall
be construed as references to those statutes as modified or amended
from
time to time.
|
| 2. |
Appointment
|
| 2.1 |
The
Company shall employ the Executive and the Executive agrees to act
as
Managing Director of the Company and subject to the terms and conditions
specified in this Agreement.
|
| 2.2 |
The
Executive represents and warrants that he is not bound by or subject
to
any court order, agreement, arrangement or undertaking which in any
way
restricts or prohibits him from entering into this Agreement or from
performing his duties under this
Agreement.
|
| 2.3 |
If
the Executive shall cease by reason (in whole or in part) of his
own act
or default to be a director of the Company he shall be deemed to
be in
breach of this Agreement except where such act or default is as a
result
of any unreasonable act or default of the
Company.
|
| 3. |
Term
|
| 3.1 |
The
Employment shall commence on the later of the date hereof or the
date a
finalised merger with or sale of the Company occurs and, subject
to
clauses 3.2
and 16,
shall continue unless or until terminated by either party giving
to the
other not less than 6 months notice in writing.
|
| 3.2 |
The
Employment shall terminate when the Executive reaches such age as
the
Board shall determine is the appropriate retirement age for senior
employees of the Company.
|
| 3.3 |
The
Executive’s period of continuous employment will begin on 8 December
2006.
|
| 4. |
Duties
|
| 4.1 |
The
Executive shall perform the duties of Managing
Director.
|
| 4.2 |
The
Executive shall:
|
| (a) |
Devote
sufficient time to carry out the duties assigned to him and which
will
allow the Company’s business plan to be executed in a timely
manner;
|
| (b) |
Faithfully
and diligently serve the Company (and all the Groups
Companies);
|
| (c) |
Use
his best endeavors to promote and protect the interests of the Company
(and all Group Companies);
|
| (d) |
Obey
all reasonable and lawful directions given to him by or under the
authority of the Board;
|
| (e) |
Perform
services for and hold offices in any Group Company without additional
remuneration (except as otherwise agreed);
and
|
| (f) |
Make
such reports to the Board on any matters concerning the affairs of
the
Company or any Group Company as are reasonably
required.
|
4
| 5. |
Hours
and place of work
|
| 5.1 |
The
Executive shall work such hours as are necessary for the proper
performance of his duties. For the purposes of the U.K. Working Time
Regulations 1998, the Executive hereby consents to work longer than
48
hours per week if his duties so require. The Executive may revoke
such
consent on three months’ written notice, such notice to be addressed to
the Company Secretary.
|
| 5.2 |
The
Executive’s normal place of work will be his home office, but the Company
may require the Executive to work from any of its current or future
premises. The Executive will be given reasonable notice of any change
in
his place of work. In the event that the Company and the Executive
fail to
reach agreement on terms of transfer, then it is not deemed to be
a
material breach of this contract.
|
| 5.3 |
If
the Executive’s principal place of work is changed to a location which is
outside reasonable commuting distance from his home, the Company
will
reimburse his reasonable removal costs, estate agents and solicitors’
fees.
|
| 5.4 |
If
so required by the Company, the Executive shall travel to such places
(whether in the United Kingdom or abroad) by such means and on such
occasions as the Company may from time to time
require.
|
| 6. |
Remuneration
|
| 6.1 |
The
Company shall pay to the Executive an equivalent salary of £72,000 per
annum.
|
| 6.2 |
The
Company will make all monies owed payable by direct credit transfer
in
equal monthly installments in arrears on the last working day of
each
calendar month.
|
| 6.3 |
The
Executive’s base salary will be reviewed, by a Remuneration Committee
appointed by the Board, prior to 1 January of each year and any increase
will be in the Board's absolute discretion but will have regard for
both
performance and the cost of living as defined by the United Kingdom
retail
price index.
|
| 6.4 |
The
Company may pay the Executive an annual bonus of such amount as the
Board
may determine based on any agreed and in place performance
scheme.
|
| 6.5 |
The
remuneration specified in clause 6.1
shall be inclusive of any fees to which the Executive may be entitled
as a
director of the Company or any Group
Company.
|
| 6.6 |
Payment
of salary and bonus to the Executive shall be made either by the
Company
or by a Group Company and if by more than one company, in such proportions
as the Board may from time to time
determine.
|
| 6.7 |
The
Company will put in place Directors and Officers liability insurance
as
soon as practical after the Executive has formally taken up his role
and
will maintain such cover for the full term of his appointment and
any
liability that may arise thereafter. The indemnity limit will be
£5
million. A copy of the policy document shall be provided upon receipt
by
the Company.
|
| 7. |
Deductions
|
For
the
purposes of the Employment Rights Xxx 0000, the Executive hereby authorises
the
Company to deduct from his remuneration hereunder any sums due from him to
the
Company including, without limitation, any overpayments, loans or advances
made
to him by the Company, the cost of repairing any damage or loss to the Company’s
property caused by him and any losses suffered by the Company as a result of
any
gross negligence or breach of duty by the Executive.
5
| 8. |
Expenses
|
The
Company shall reimburse the Executive in respect of all expenses reasonably
incurred by him in the proper performance of his duties, subject to the
Company’s expense policy which may be amended from time to time.
| 9. |
Holidays
|
| 9.1 |
The
Executive shall be entitled to receive his normal remuneration for
all
bank and public holidays normally observed in the United Kingdom
and a
further 20 working days’ holiday in each holiday year (being the period
from 1 January - 31 December). The Executive may only take his holiday
at
such times as are agreed with the Board, which will not be unreasonably
withheld.
|
| 9.2 |
The
Company and the Executive agree that in any holiday year the Executive
shall be deemed to take his entitlement under the WTR
first.
|
| 9.3 |
In
the respective years in which the Employment commences or terminates,
the
Executive’s entitlement to holiday shall accrue on a pro rata basis for
each complete month of service during the relevant
year.
|
| 9.4 |
The
Executive may carry over a maximum up to 10 days vacation into the
following year but these must be used in the following calendar
year.
|
| 9.5 |
On
termination of the Employment, the Company may either require the
Executive to take any unused accrued holiday entitlement during any
notice
period or make payment of lieu of that entitlement. Any payment in
lieu or
deduction made shall be calculated on the basis that each day of
paid
holiday is equivalent to 1/260 of the Executive’s
salary.
|
| 9.6 |
Subject
to clause 9.5
above, unless otherwise agreed with the Board, failure to take holiday
entitlement in the appropriate holiday year will lead to forfeiture
of any
untaken accrued holiday, without any right to payment in
lieu.
|
| 10. |
Sickness
benefits
|
| 10.1 |
The
Company shall continue to pay the Executive’s salary during any period of
absence on medical grounds up to maximum of 8 weeks in any period
of 12
months, provided that the Executive
shall:
|
| (a) |
Notify
the Company by no later than 10 a.m. in the time zone where the Executive
may be located on the first day of absence of the reason for his
absence;
|
| (b) |
Complete
self-certification forms provided by the Company in respect of any
absence
from work due to sickness or
incapacity;
|
| (c) |
Supply
the Company with medical certificates covering any period of sickness
or
incapacity exceeding 7 days (including weekends and public
holidays);
|
6
| (d) |
If
required, undergo at the Company’s expense a medical Examination by a
doctor appointed by the Company and, subject to the Access to Medical
Reports Xxx 0000 or any other relevant legislation, allow the Company
access to his medical records and/or to any medical report produced
by any
doctor; and
|
| (e) |
Payment
of the Executive’s salary pursuant to clause 10.1
shall be inclusive of any Statutory Sick Pay to which the Executive
may be
entitled.
|
| 10.2 |
If
the Executive’s absence is caused by the actionable negligence of a third
party in respect of which damages are recoverable, then all sums
paid by
the Company shall constitute loans to the Executive, who
shall:
|
| (a) |
Immediately
notify the Company of all the relevant circumstances and of any claim,
compromise, settlement or judgment made or awarded in respect of
it;
|
| (b) |
If
the Company so requires, refund to the Company such sum as the Company
may
determine, not exceeding the lesser
of:
|
| (i) |
The
amount of damages recovered by him under such Compromise,
settlement or judgment; and
|
| (ii) |
The
sums advanced to him in respect of the period of
incapacity.
|
| 11. |
Other
benefits
|
| 11.1 |
During
this Agreement the Executive and his wife and child will be entitled
at
the Company’s expense, the benefit of the Company’s private medical
expenses insurance scheme for the benefit of the
Executive.
|
| 11.2 |
The
Executive’s membership of the scheme detailed at 11.1 above is subject
to:
|
| (a) |
the
rules of the above scheme from time to time (and any replacement
scheme
provided by the Company); and
|
| (b) |
the
Executive being eligible to participate in or benefit from such scheme
pursuant to their rules.
|
| 11.3 |
If
any scheme provider (including but not limited to any insurance company)
refuses for any reason (whether based on its own interpretation of
the
terms of the insurance policy or otherwise) to provide any benefits
to the
Executive the Company is not liable to provide replacement benefit
of the
same or similar kind or compensation in lieu of such
benefit.
|
| 11.4 |
The
Company may at its absolute discretion challenge any refusal by any
scheme
provider to provide benefits to the Executive providing
that:
|
| (a) |
where
appropriate, the Executive takes all proper measures to appeal against
the
refusal in accordance with the terms of any policy provided by the
scheme
provider and meets (on an interim or on-account basis if so requested)
all
costs in connection with the same;
and
|
| (b) |
the
Executive fully cooperates with the Company and discloses to it all
personal information relevant to the claim and, if required by the
Company, attends a medical examination by a doctor selected and instructed
by it; and
|
7
| (c) |
the
Executive fully indemnifies the Company against all costs, expenses
and
claims incurred by the Company in connection with challenging the
scheme
provider’s decision to refuse to provide benefits under the
scheme(s).
|
| 11.5 |
The
Company at its absolute discretion reserves the right to discontinue,
vary
or amend any scheme provided for the benefit of the Executive at
any time
and will not be liable to provide any replacement benefit of the
same or
similar kind, or compensation in lieu of such
benefit.
|
| 11.6 |
The
Company shall not have any liability to pay any benefit to the Executive
under any insurance scheme unless it receives payment of the benefit
from
the insurer under the scheme.
|
| 12. |
Pension
|
The
Company will provide within the base compensation package, subject to Board
approval, 5% of base salary which the Executive can use to invest in a private
pension plan of their choosing. The Company reserves the right at its absolute
discretion to discontinue, terminate, vary or amend existing pension
arrangements at any time and will not be liable to provide any other pension
arrangements of a same or similar kind or compensation in lieu of such
arrangements. There is no contracting-out certificate in force in respect of
the
Executive’s employment with the Company.
| 13. |
Restrictions
on other activities by the
Executive
|
| 13.1 |
The
Executive hereby confirms that all outside directorships and other
(direct
or indirect) interests, employments, consultancies or associations
(“Outside
Interests”)
held by the Executive are set out in Schedule 1.
|
| 13.2 |
The
Executive hereby confirms that he will keep the Board informed on
a
continuing basis of all changes to such Outside Interests including
advising the Company of any actual or potential conflict of interest which
arises between any Outside Interest and the Executive's position
on the
Board.
|
| 13.3 |
The
Executive shall not (except with the prior sanction of a resolution
of the
Board) be directly or indirectly employed, engaged, concerned or
interested in any other business or undertaking, provided that this
shall
not prohibit the holding (directly or through nominees) of investments
listed on any recognised Stock Exchange as long as not more than
three per
cent of the issued shares or other securities of any class of any
one
company shall be so held without the prior sanction of a resolution
of the
Board.
|
| 13.4 |
The
Executive shall comply with:
|
| (a) |
every
rule of law;
|
| (b) |
the
rules and regulations of the Memorandum and Articles of the Company
or any
other rules and regulations which are applicable to him from time
to
time.
|
| 13.5 |
Subject
to any regulations issued by the Company, the Executive shall not
be
entitled to receive or obtain directly or indirectly any discount,
rebate
or commission in respect of any sale or purchase effected or other
business transacted (whether or not by him) by or on behalf of the
Company
or any Group Company and if he (or any firm or company in which he
is
interested) shall obtain any such discount, rebate or commission
he shall
account to the Company or the relevant Group Company for the amount
received by him (or a due proportion of the amount received by such
company or firm having regard to the extent of his interest
therein).
|
8
| 14. |
Confidential
Information and company
documents
|
| 14.1 |
The
Executive shall neither during the Employment (except in the proper
performance of his duties) nor at any time (without limit) after
the
termination of the Employment:
|
| (a) |
Divulge
or communicate to any person, company, business entity or other
organisation;
|
| (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 any trade secrets or Confidential Information relating
to
the Company or any Group Company or their clients, but so that these
restrictions shall cease to apply to any information which shall
become
available to the public generally otherwise than through the default
of
the Executive or which the Executive is entitled to disclose under
or
required to disclose by law.
|
| 14.2 |
All
notes, technical data including reports and project interpretation,
including financial analysis, memoranda, records, lists of customers
and
suppliers and employees, correspondence, documents, computer and
other
discs and tapes, data listings, codes, designs and drawings and other
documents and material whatsoever (whether made or created by the
Executive or otherwise) relating to the business of the Company or
any
Group Company (and any copies of the
same):
|
| (a) |
Shall
be and remain the property of the Company or the relevant Group Company;
and
|
| (b) |
Shall
be handed over by the Executive to the Company or to the relevant
Group
Company on demand and in any event on the termination of the
Employment.
|
| 15. |
Inventions
and other intellectual
property
|
| 15.1 |
The
parties foresee that the Executive may make inventions or create
other
intellectual property in the course of his duties for the Company
and
agree that in this respect the Executive has a special responsibility
to
further the interests of the Company and the Group
Companies.
|
| 15.2 |
Any
invention, or improvement, design, process, information, copyright
work,
trade xxxx or trade name or get-up made, created or discovered by
the
Executive during the course of his duties for the Company whether
capable
of being patented or registered or not and whether or not made or
discovered in the course of the Employment) in conjunction with or
in any
way affecting or relating to the business of any company in the Group
or
capable of being used or adapted for use therein or in connection
therewith shall forthwith be disclosed to the Company and shall (subject
to sections 39 to 43 of the UK Patents Xxx 0000 or any similar relevant
legislation) belong to and be the absolute property of the Company
or such
Group Company as the Company may direct.
|
9
| 15.3 |
The
Executive if and whenever required so to do by the Company shall
at the
expense of the Company or such Group Company as the Company may
direct:
|
| (a) |
Apply
or join with the Company or such Group Company in applying for letters
patent or other protection or registration in the United Kingdom
and in
any other part of the world for any such invention, improvement,
design,
process, information, work, trade xxxx, trade name or get-up aforesaid;
and
|
| (b) |
Execute
and do all instruments and things necessary for vesting the said
letters
patent or other protection or registration when obtained and all
right
title and interest to and in the same absolutely and as sole beneficial
owner in the Company or such Group Company or in such other person
as the
Company may specify.
|
| 15.4 |
The
Executive hereby irrevocably and unconditionally waives all rights
under
Chapter IV of the UK Copyright, Designs and Patents Xxx 0000 in connection
with his authorship of any existing or future copyright work in the
course
of the Employment, in whatever part of the world such rights may
be
enforceable including, without
limitation:
|
| (a) |
The
right conferred by section 77 of that Act to be identified as the
author
of any such work; and
|
| (b) |
The
right conferred by section 80 of that Act not to have any such work
subjected to derogatory treatment.
|
| 15.5 |
The
Executive hereby irrevocably appoints the Company to be his Attorney
in
his name and on his behalf to execute and do any such instrument
or thing
and generally to use his name for the purpose of giving to the Company
the
full benefit of this clause. In favor of any third party a certificate
in
writing signed by any Director or by the Secretary of the Company
that any
instrument or act falls within the authority hereby conferred shall
be
conclusive evidence that such is the
case.
|
| 15.6 |
Nothing
in this clause shall be construed as restricting the rights of the
Executive or the Company under sections 39 to 43 of the UK Patents
Xxx
0000 or any similar legislation.
|
| 16. |
Termination
|
| 16.1 |
The
Employment shall be subject to termination
by:
|
| (a) |
By
the Company giving not less than 3 months notice in writing given
at any
time while the Executive shall have been prevented by reason of ill
health
or accident from performing his duties under this Agreement for a
period
of or periods aggregating 180 days in the preceding 12
months.
|
| (b) |
By
Notice under clause 3.1.
|
| (c) |
By
summary notice in writing and without any entitlement to pay in lieu
of
notice if the Executive shall have:
|
10
| (i) |
Been
guilty of an act of gross misconduct or negligence or committed any
serious breach or repeated or continued (after warning) any material
breach of his obligations under this Agreement;
or
|
| (ii) |
Been
guilty of conduct which in the opinion of the Board brings himself
or the
Company or any Group Company into disrepute;
or
|
| (iii) |
Provided
false or misleading information to the Company in respect of his
suitability for the Employment or his qualifications and experience;
or
|
| (iv) |
Become
bankrupt or had an interim order made against him under the UK Insolvency
Xxx 0000 or compounded with his creditors generally;
or
|
| (v) |
Failed
in the opinion of the Board to perform his duties to a satisfactory
standard, after having received a written warning from the Company
and a
period of 3 months in which to remedy the performance issues raised
by the
Board relating to the same; or
|
| (vi) |
Been
disqualified from holding any office which he holds in the Company
or any
Group Company or resigns from such office without the prior written
approval of the Board; or
|
| (vii) |
Been
convicted of any criminal offence other than a minor motoring offence
for
which a custodial sentence is not
imposed.
|
Any
delay
by the Company in exercising such right of termination shall not constitute
a
waiver thereof.
| 16.2 |
The
Company (at its sole and absolute discretion) reserves the right
to
terminate the Employment at any time and with immediate effect by
making
the Executive a payment in lieu of any notice of termination (whether
given by the Company or by the Executive). For this purpose, the
Executive
agrees that the payment in lieu will consist of his basic salary
for the
relevant period of notice and will exclude any bonus and any other
emolument referable to the Employment and shall be subject to deductions
of PAYE tax and National Insurance
contributions.
|
For
the
avoidance of doubt, if the Company terminates the Employment without notice
other than under clause 16.1(c)
above
and elects not to make a payment in lieu of notice, the Executive may be
entitled to damages for breach of contract which shall be assessed on the normal
common law principles (including the Executive’s obligation to mitigate his
loss) and the Executive shall not be entitled to enforce payment in lieu of
notice as a contractual debt or liquidated damages.
| 16.3 |
If
|
| (a) |
the
Company in general meeting shall remove the Executive from the office
of
director of the Company or;
|
| (b) |
under
the Articles of Association for the time being of the Company the
Executive shall be obliged to retire by rotation or otherwise and
the
Company in general meeting shall fail to re-elect the Executive as
a
director of the Company (either such case being referred to in this
clause
16.3
as
an “Event”), then the Employment shall automatically terminate with effect
from the date of the Event, but if such termination shall be caused
by any
act or omission of either party (and, for the avoidance of doubt,
an act
or omission of the Company’s shareholders shall be an act or omission of
the Company for these purposes) without the consent, concurrence
or
complicity of the other, then such act or omission shall be deemed
a
breach of this Agreement, and termination shall be without prejudice
to
any claim for damages in respect of such breach.
|
11
| 16.4 |
On
the termination of the Employment (howsoever arising) or on either
the
Company or the Executive having served notice of such termination,
the
Executive shall:
|
| (a) |
At
the request of the Company resign from office as a director of the
Company
and all offices held by him in any Group Company, provided however
that
such resignation shall be without prejudice to any claims which the
Executive may have against the Company or any Group Company arising
out of
the termination of the Employment;
and
|
| (b) |
Forthwith
deliver to the Company all materials within the scope of clause
14.2
and all credit cards, motor-cars, car keys and other property of
or
relating to the business of the Company or of any Group Company which
may
be in his possession or under his power or control, and
|
If
the
Executive should fail to do so the Company is hereby irrevocably authorised
to
appoint some person in his name and on his behalf to sign any documents and
do
any things necessary to give effect thereto.
| 16.5 |
On
termination of the Employment (howsoever arising and whether lawful
or
not) the Executive shall have no rights as a result of this Agreement
or
any alleged breach of this Agreement to any compensation under or
in
respect of any share, share option or other long term incentive scheme
in
which he may participate or have received grants or allocations at
or
before the date the Employment terminates. Any rights which he may
have
under such share option or other scheme(s) shall be exclusively governed
by the rules of such scheme(s).
|
| 16.6 |
If
the Executive shall have been offered but shall unreasonably have
refused
to agree to the transfer of this Agreement by way of novation to
a company
which has acquired or agreed to acquire the whole or substantially
the
whole of the undertaking and assets of or of the equity share capital
of
the Company, the Executive shall have no claim against the Company
in
respect of the termination of his employment hereunder by reason
of the
subsequent voluntary winding-up of the Company or of the disclaimer
of
this Agreement by the Company within one month after such
acquisition.
|
| 17. |
Restrictive
Covenants
|
| 17.1 |
The
Executive warrants that he has taken and has had the opportunity
to take
independent legal advice about the post-termination restrictions
set out
in this clause and hereby agrees that the said restrictions and
definitions are reasonable as at the date of this
Agreement.
|
| 17.2 |
If
the Executive applies for and/or is offered a new employment, appointment
or engagement the Executive agrees, before entering into any related
contract, to bring the terms of this Agreement to the attention of
a third
party proposing directly or indirectly to employ, engage or appoint
the
Executive.
|
12
| 17.3 |
For
the purposes of 17.4
the following words have the following
meanings:
|
| (a) |
“Customer”
means any person, firm, company or other organisation whatsoever
to whom
or which the Company or any Group Company distributed, sold or supplied
Company during the 6 months immediately preceding the Termination
Date and
with whom or which, during such
period:
|
| (i) |
The
Executive had material personal dealings in the course of his employment;
or
|
| (ii) |
Any
employee who was under the direct or indirect supervision of the
Executive
had material personal dealings in the course of his/her
employment;
|
| (b) |
“Prospective
Customer” means any person, firm, company or other organisation whatsoever
with whom or which the Company or any Group Company shall have had
negotiations or discussions regarding the possible distribution,
sale or
supply of Company Products during the six months immediately preceding
the
Termination Date and with whom or which, during such
period:
|
| (i) |
The
Executive shall have had material personal dealings in the course
of his
employment by the Company; or
|
| (ii) |
Any
employee who was under the direct or indirect supervision of the
Executive
shall have had material personal dealings in the course of his/her
employment by the Company;
|
| (c) |
“Restricted
Area” means the United Kingdom constituting the market of the Company or
any Group Company for Company in the period of 12 months prior to
the
Termination Date and with which the Executive was materially concerned
during the said period of 12
months;
|
| (d) |
“Restricted
Period” means the period of six months immediately following the
Termination Date;
|
| (e) |
“Termination
Date” means the date of termination of the Employment or, if the Executive
spends a period on garden leave immediately before the termination
of the
Employment, such earlier date on which garden leave
commences.
|
| 17.4 |
The
Executive hereby undertakes with the Company (for itself and as trustee
for each Group Company) that he will not during the Restricted Period
without the prior written consent of the Company (such consent not
to be
unreasonably withheld) whether by himself, through his employees
or agents
or otherwise howsoever and whether on his own behalf or on behalf
of any
other person, firm, company or other organisation, directly or
indirectly:
|
| (a) |
In
competition with the Company or any Group Company within the Restricted
Area, be employed or engaged or otherwise interested in the business
of
researching into, developing, selling, supplying or otherwise dealing
with
Company;
|
13
| (b) |
In
competition with the Company or any Group Company, solicit business
from
or canvas any Customer or Prospective Customer if such solicitation
or
canvassing is in respect of
Company;
|
| (c) |
In
competition with the Company or any Group Company, accept orders
for
Company from any Customer or Prospective
Customer;
|
| (d) |
Solicit
or induce or endeavor to solicit or induce any person who on the
Termination Date was a director, line manager, or other key employee
of
the Company or any Group Company with whom the Executive had material
dealings during his employment to cease working for or providing
services
to the Company, whether or not any such person would thereby commit
a
breach of contract;
|
| (e) |
Employ
or otherwise engage in the business of researching into, developing,
selling, supplying or otherwise dealing with Company any person who
was
during the 12 months preceding the Termination Date employed or otherwise
engaged by the Company or any Group Company and who by reason of
such
employment or engagement is in possession of any trade secrets or
Confidential Information relating to the business of the Company
or any
Group Company or who has acquired influence over its or their customers
and prospective customers (defined as in clauses 16.3(a), (c) and
(d), but
so that references to the Executive shall be replaced by references
to the
relevant employee).
|
| 18. |
DISCIPLINARY
AND GRIEVANCE PROCEDURES
|
| 18.1 |
The
Executive may apply for the purpose of seeking redress of any grievance
relating to his employment in the first instance to the Chairman
of the
Company in writing, who will afford the Executive the opportunity
of a
full and fair hearing. Matters not satisfactorily resolved should
be
referred in writing to the Board whose decision on such grievance
shall be
final and binding.
|
| 18.2 |
The
Company's normal disciplinary procedures shall apply to the Executive.
If
the Executive seeks to appeal against any disciplinary action taken
against him he should do so to the Board submitting full written
grounds
for his appeal to the Chairman within seven days of the action appealed
against. The decision of the Board or a delegated committee thereof
shall
be final and binding. For the avoidance of doubt, the Executive has
no
contractual (as opposed to statutory) right to a disciplinary or
grievance
hearing or any appeal.
|
| 18.3 |
Suspension
|
In
order
to investigate a complaint against the Executive of misconduct or poor
performance the Company is entitled to suspend the Executive on full pay and
other contractual benefits for so long as may be necessary to carry out a proper
investigation and hold if appropriate a disciplinary hearing which mayor may
not
give rise to a right to the Company to terminate the Executive's employment
(as
the case may be). During such period, the Executive shall not, except with
the
consent in writing of the Board, attend at any premises of the Company or any
Group Company or contact or communicate with any employee of the Company or
any
Group Company (other than a director of the Company or any Group Company) or
any
customer, client, supplier or contractual counterparty of the Company or any
Group Company. If the Company becomes entitled to terminate this Agreement
pursuant to this clause, it may, but without prejudice to its right subsequently
to terminate the Appointment on the same or any other ground, suspend the
Executive on full pay and benefits for so long as it thinks fit.
14
| 19. |
Data
Protection
|
The
Company will hold details pertinent to the Executive’s employment on file as
part of his personnel records, which may include sensitive information. This
information may be processed for administrative or legal purposes or as required
by the Executive’s continuing employment with the Company.
| 20. |
Notices
|
| 20.1 |
Any
notice or other document to be given under this Agreement shall be
in
writing and may be given personally to the Executive or to the Company
Secretary (as the case may be) or may be sent by first class post
or other
fast postal service or by facsimile transmission to, in the case
of the
Company, its registered office for the time being and in the case
of the
Executive either to his address shown in this Agreement or to his
last
known place of residence.
|
| 20.2 |
Any
such notice shall be deemed served when in the ordinary course of
the
means of transmission it would first be received by the addressee
in
normal business hours.
|
| 21. |
Former
Agreements
|
| 21.1 |
This
Agreement shall be in substitution for any previous letters of
appointment, agreements or arrangements, whether written, oral or
implied,
relating to the employment of the
Executive.
|
| 21.2 |
The
Executive hereby acknowledges that he has no outstanding claims of
any
kind against any Group Company.
|
| 22. |
Garden
Leave
|
| 22.1 |
Despite
any other provision in this Agreement the Company is under no obligation
to provide the Executive with work and may (if either party serves
notice
to terminate the Employment or if the Executive purports to terminate
the
Employment without due notice and the Company has not accepted that
resignation):
|
| (a) |
Require
the Executive to perform:
|
| (i) |
Only
a specified part of his normal duties, and no
others;
|
| (ii) |
Such
duties as it may reasonably require, and no others; or
|
| (iii) |
No
duties whatever;
|
and
| (b) |
Exclude
the Executive from any premises of any Group
Company.
|
| 22.2 |
During
any period of garden leave the Executive
shall:
|
| (a) |
Remain
an employee of the Company;
|
| (b) |
Not
(except as a representative of the Company or with the prior written
approval of the Board) whether directly or indirectly, paid or unpaid,
be
engaged or concerned in the conduct of any other actual or prospective
business or profession or be or become employee, agent, partner,
consultant or director of any other company or firm or assist or
have any
financial interest in any other such business or
profession;
|
15
| (c) |
Not
to have any contact or communication with any client or other business
contact, customer, employee, officer, director, agent or consultant
of the
Company or any Group Company, except such person(s) as the Board
may
direct;
|
| (d) |
Keep
the Company informed of his whereabouts so that he can be called
upon to
perform any appropriate duties as required by the
Company;
|
| (e) |
If
the Company, so requests, resign from any office held by him in any
Group
Company;
|
| (f) |
Continue
to receive his salary and all contractual benefits in the usual way;
and
|
| (g) |
Continue
to be bound by his contractual and implied duties of good faith and
fidelity.
|
| (h) |
If
requested, remain readily contactable by providing telephone email
details
and be available to work for the Company save when the Executive
is on
holiday by prior agreement with the
Company.
|
| 22.3 |
If
the Company exercises its right to place the Executive on garden
leave,
the Executive shall be deemed to take any outstanding holiday during
such
garden leave. The Executive will not accrue any holiday entitlement
in
respect of any period of notice for which he is paid in
lieu.
|
| 23. |
Choice
of law and submission to
jurisdiction
|
| 23.1 |
This
Agreement shall be governed by and interpreted in accordance with
the laws
of England and Wales.
|
| 23.2 |
The
parties hereby submit to the jurisdiction of the England and Wales
but
this Agreement may be enforced by the Company in any court of competent
jurisdiction.
|
IN
WITNESS whereof this Agreement has been executed as a deed the day and
year-first above written. EXECUTED as a deed by Flex Fuels Energy
Limited.
16
|
SIGNED
for and on behalf of
Flex
Fuels Energy Limited
|
)
/s/
Xxx Xxxxxx
Xxx
Xxxxxx
Duly
Authorised Director
|
|
EXECUTED
and DELIVERED
as
a deed by Xxxxxx Xxxx Xxxxx
|
)
/s/
Xxxxxx Xxxx Xxxxx
………………………………………………….
Xxxxxx
Xxxx Xxxxx
|
|
in
the presence of:
|
)
Name_________________________________________________________
Address_______________________________________________________
|
17
Schedule
1
Outside
Interests
|
No.
|
Interest
|
|
1
|
Ownership
of 4% of shares in EnergyPoint Pty Limited (private company incorporated
in Australia). This Company develops, installs and maintains energy
trading software for participants in the Australian National Electricity
Market.
This
company is not and does not intend to operate with the
Company.
|
|
2
|
A
continuing informal advisory role to Xxxxxx, Xxxxxx & Xxxxxxxx LLP.
This includes the refinancing of CHP, renewable and biofuel
assets.
|
|
3
|
A
continuing mandate with Key Data investments to undertake the refinancing
of renewable and biofuel assets.
|
16
