OCTAVIAN INTERNATIONAL LIMITED and MR OWEN PETER MOFFITT Service Agreement for Director
XXXXX
& CO
OCTAVIAN
INTERNATIONAL LIMITED
and
XX
XXXX XXXXX XXXXXXX
Service
Agreement for Director
Agreement
Dated 16
October 2008
Between:
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(1)
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OCTAVIAN
INTERNATIONAL LIMITED a
company registered in England and Wales under number 04185988 which
is
trading from Xxxx Xxxxx, 0-0 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxx, XX0
0XX
(Company);
and
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(2)
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XXXXX
XXXXXXX
of
0 Xxxxxxxxxx Xxxxx, Xxxxxxx, XXX 0000, Xxxxxxxxx
(Executive).
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1
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Appointment
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1.1
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The
Company shall employ the Executive as PRESIDENT of the Company and
appoints the Executive as a Director of the
Company.
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1.2
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The
Executive warrants that by entering into this Agreement or any other
arrangements with the Company or Group Company he will not be in
breach of
or subject to any express or implied terms of any contract with or
other
obligation to any third party binding on the Executive, including
without
limitation, any notice period or the provisions of any restrictive
covenants or confidentiality obligations arising out of any employment
with any other employer or former
employer.
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| 1.3 |
The
Executive warrants that at the time of entering into this Agreement
the
Executive has the right to work in the United Kingdom or believes
that he
has the ability to be granted the right to work in the United Kingdom
and
the Executive agrees to provide to the Company copies of all relevant
documents in this respect at the request of the Company. In relation
to
this Clause, the Company agrees to sponsor, support and endorse the
efforts of the Executive in the process of receiving the necessary
permits
to allow him to have the right to work in the United Kingdom pursuant
to
the position considered in this Agreement. If at any time during
the
course of this Agreement the Executive ceases to have or fails to
achieve
in a reasonable timeframe the right to work in the United Kingdom
the
Company may immediately terminate the Executive’s employment without
payment of compensation.
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| 1.4 |
The
Company reserves the right to appoint any other person to act jointly
or
in conjunction with the Executive.
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| 2 |
Term
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| 2.1 |
Subject
to Clause 14.3, the Executive’s employment shall commence on 11 February
2008 and shall continue unless and until either party gives notice
to the
other in accordance with Clause 14.1. No employment with a previous
employer is deemed to be continuous with the Executive’s employment with
the Company and as such the Executive’s continuous employment commenced on
11 February 2008.
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| 2.2 |
The
Executive’s employment under this Agreement will terminate on the last
day
of the month in which the Executive shall attain the Company’s retirement
age from time to time. This is currently 65
years.
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| 3 |
Place
of work
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The
Executive place of work will be at 0-0 Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxx, XX0
0XX
or such other place of business as the Company may reasonably require. The
Executive may be required to work outside the United Kingdom from time to time
but unless otherwise agreed with the Company the Executive will not be required
to live outside the United Kingdom.
| 4 |
Duties
and powers
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| 4.1 |
The
Executive shall:
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(a)
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faithfully,
diligently and in good faith exercise such powers and perform such
duties
(if any) on behalf of the Company or any Group Company as are consistent
with the Executive’s position and as may from time to time be assigned to
the Executive by the Board or anyone else authorised by the Board
and
shall not do anything that is harmful to the Company or any Group
Company;
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(b)
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exclusively
devote the whole of the Executive’s time, skill, ability and attention to
the business of the Company or any Group
Company;
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(c)
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expect
and agree to travel extensively to various business locations, as
required
to perform his duties and functions and according to the prescribed
Company Travel Executive Scheme and according to fair and reasonable
travelling conditions, as generally guided by the Company’s Travel Policy
in force at that time and as agreed or approved by the Company
Board;
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(d)
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use
all reasonable endeavours to promote the interests and reputation
of the
Company or any Group Company; and
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(e)
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accept
any offices or directorships as reasonably required by the Board
or the
board of directors of any other Group
Company.
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4.2
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The
Executive shall, in a timely fashion, give to the Board (in writing
if so
requested) all information, advice and explanations as may be required
in
connection with matters relating to the Executive’s employment under this
Agreement or with the business of the Company or and Group Company
for
which the Executive shall from time to time be required to work under
Clause 4.1.
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4.3
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The
Executive shall at all times comply with and shall not cause the
Company
or any Group Company to breach or contravene any and all rules,
regulations and requirement of any regulatory body, or stock exchange,
code of conduct or statutory provision to which the Executive, the
Company
and/or any Group Company is from time to time subject, including,
without
limitation, the Financial Services and Markets Xxx 0000 and any rules,
regulations or procedures made by the Company and/or and Group Company
from time to time.
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4.4
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The
Executive shall not while employed by the Company without the prior
written consent of the Board (which shall not be unreasonably withheld)
either solely or jointly, directly or indirectly, carry on or be
engaged,
concerned or interested (whether as shareholder, holder or securities
or
otherwise) in any other trade or business including, but not limited
to,
carrying on business with the Company’s suppliers or dealers, save that
nothing in this Clause shall prevent the Executive from holding (with
prior written consent of the Board which shall not be unreasonably
delayed
or withheld) up to three percent (3%) of the issued equity share
capital
of any company where those equity shares are listed on a recognized
investment exchange 9as defined in section 285 of the Financial Services
and Markets Act 200) or traded on the alternative Investment Market
of the
London Stock Exchange. Failure to secure advance permission in accordance
with this Clause 4.4 may result in summary
dismissal.
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4.5
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The
Company shall be entitled during the continuance of the Executive’s
employment to make available the Executive’s services to any other person,
firm or company whether or not a Group Company for such periods as
the
Company reasonably thinks fit and the Executive shall enter into
such
agreement (in terms no less favourable than this Agreement) with
such
other person, firm or company as the Company may reasonably require
to
give full effect to such
arrangement.
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4.6
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The
Executive will upon becoming aware of the same promptly disclose
to the
Board in writing full details of any wrongdoing by any employee or
director of the Company or any Group Company where that wrongdoing
is in
the Executive's reasonable opinion material to that employee or directors
employment by the relevant company or to the interests or reputation
of
the Company or any Group Company.
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5
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Directorship
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5.1
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Except
as otherwise stated in this Agreement, the Executive shall not prior
to
the termination of this Agreement after being appointed resign or
be
subject to retirement by rotation as director of the Company or any
Group
Company (unless the Articles of Association of the Company or the
relevant
Group Company as amended from time to time so provide). If the provisions
of this Clause 5.1 and the Articles of Association of the relevant
company
conflict, then the Articles of Association shall
prevail.
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5.2
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If
the Executive shall cease for any reason whatsoever to be a director
of
the Company or any Group Company this Agreement shall (unless the
parties
otherwise agree in writing) thereupon terminate but if such cessation
is
caused by any act or omission of either party without the consent,
concurrence or complicity of the other such act or omission shall
be
deemed a breach of this Agreement and determination of this Agreement
shall be without prejudice to any claim for damages in respect of
such
breach provided that the Executive shall be treated as the party
in breach
if the Executive is removed from office in circumstances which justify
termination under Clause 14.3.
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5.3
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On
termination of this Agreement for whatever reason the Executive shall
at
the request of the Company resign forthwith without claim for compensation
from all offices the Executive holds in the Company and/or any Group
Company or from any position which the Executive occupies as a trustee
in
relation to the business of the Company or any Group Company and
in the
event of the Executive failing so to do within 7 days after the making
of
such request the Company is hereby irrevocably authorised to appoint
its
secretary for the time being as the Executive’s agent in the Executive’s
name and on the Executive’s behalf to give notice of such resignation and
to do all other things requisite to give effect
thereto.
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6
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Remuneration
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6.1
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The
Executive’s salary (inclusive of any remuneration received or receivable
by the Executive in respect of any office or other employment with
the
Company or any Group Company) will be $US375.000 per annum, gross
before
any deductions required by law and the net amount shall be paid in
equal
instalments monthly in arrears on or around the 5th of each
month.
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| 6.2 |
The
Executive agrees that the Company may deduct from the salary
or any other
sum due to the Executive (including any pay in lieu of notice)
any amounts
due to the Company including, without limitation, any overpayment
of
salary, loan or
advance.
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| 6.3 |
The
Executive’s salary shall be reviewed annually at the end of the calendar
year and any resulting changes will be effective from the following
January.
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| 7 |
Discretionary
bonus
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| 7.1 |
The
Company may in its absolute discretion pay the Executive a bonus
of such
amount, which (for the purposes of example) is expected to be
approximately $US60,000 per annum net after the deduction of
any taxes or
other required deductions, However, this bonus will be at such
intervals
and subject to such conditions as the Company may in its sale
and absolute
discretion determine from time to
time.
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| 7.2 |
Any
bonus payment to the Executive shall be purely discretionary
and shall not
form part of the Executive’s contractual remuneration under this
Agreement. If the Company makes a bonus payment to the Executive
in
respect of a particular financial year of the Company (being
the period
from 1 January to 31 December, it shall not be obliged to make
subsequent
bonus payments.
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| 7.3 |
The
Company may, from time to time and by its sole discretion, distribute
the
Company’s shares or share options to various staff members, For the sake
of clarity, the Executive is one of the staff members who might
be
considered to benefit from those shares or share
options.
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| 7.4 |
Notwithstanding
Clause 7.2, the Executive shall in any event have no right to
a bonus
(whether on a pro-rata basis or otherwise)
if:
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| (a) |
the
Executive has not been employed throughout the whole of the relevant
financial year of the Company;
or
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| (b) |
the
Executive has an unexpired disciplinary warning on his file on
the date on
which a bonus might otherwise have been payable;
or
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| (c) |
the
Executive’s employment terminates for any reason or the Executive is under
notice of termination (whether given by the Executive or the
Company) at
or prior to the date when a bonus might otherwise have been
payable.
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| 8 |
Benefits
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8.1
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The
Executive shall (subject to the rules of such schemes) be entitled
to
participate at the Company's expense
in:
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| (a) |
the
Company’s private medical cover
scheme;
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| (b) |
the
Company’s travel insurance scheme.
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| 8.2 |
The
Company reserves the right to terminate any or all of the schemes
referred
to in Clauses 8.1 (a) and 8.1 (b) or to amend them at any time without
compensation.
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8.3
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AU
insured benefits are subject to the policy terms and conditions upon
which
they are incepted or renewed and to the Executive and, if appropriate,
the
Executive's spouse and/or long term partner (which, for the purposes
of
this Clause, means an unmarried person of either sex who, whilst
not
related to the Executive by birth or marriage, has been in a committed
relationship of mutual caring with the Executive for at least a year
and
who shares the Executive principal place of residence and intends
to do so
indefinitely) and/or dependant children meeting the underwriting
criteria
acceptable to the Company. In the event that an insurer of any insured
benefit under this Agreement does not meet a claim made by the Executive
or on the Executive behalf, then the Executive shall have no claim
against
the Company in respect of that insured
benefit.
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Subject
to the Company’s car allowance policy (if any) from time to time in force
the Company may, at its sole discretion, provide the Executive with
an
annual car allowance. The Company shall not be responsible for any
costs
of repairs, maintenance, taxation and insurance of the Executive’s
vehicle.
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8.4
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The
Executive may instruct the Company to make deductions from his salary
on a
monthly basis for contributions to be made into the Company's
non-contributory designated stakeholder pension scheme. Any such
instructions should be made in writing detailing the amount to be
deducted
at source. For the avoidance of doubt, the Company shall not make
any
contribution to such a scheme.
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| 8.5 |
A
contracting-out certificate is not in force in respect of the
Appointment.
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| 9 |
Expenses
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The
Company shall reimburse all reasonable out of pocket expenses properly incurred
by the Executive in the performance of the duties under this Agreement including
travelling (but not to include the cost of travelling to and from the office),
subsistence and entertainment expenses provided the Executive follows the
Company's guidelines/allowances in force at the relevant time and provided
that
the Executive shall, where reasonably practicable, provide the Company with
vouchers, invoices or such other evidence of such expenses as the Company may
reasonably require.
At
the
Company’s sole discretion, it is generally expected that all flights of longer
duration than 2 hours used by the Executive will be of Business Class standards.
However, as decided by the Company from time to time, this might revert to
Economy Class standard for business or economic reasons.
| 10 |
Hours
of work
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10.1
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The
Executive shall be required to comply with the Company’s normal hours of
work and shall also be required to work any suel1 additional hours
as may
be necessary to fulfill the Executive’s duties having regard to the
Executive’s status and seniority. No further remuneration is payable for
any hours worked in addition to the Company's normal
hours.
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10.2
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The
Executive agrees that, for the purposes of the Working Time Regulations
1998 (WTR), the duration of the Executive’s working time is wholly or
partly unmeasured and/or can be determined by the Executive and as
such
the 48-hour maximum working week under the VVTR does not apply to
the
Executive. The Executive will not receive any further remuneration
for any
hours worked in addition to normal business
hours.
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11
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Holidays
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11.1
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In
addition to the usual public holidays the Executive will be entitled
to 25
working days’ paid holiday in each calendar year. The holiday will accrue
on a pro rata basis throughout each calendar year. Such holidays
are to be
taken at such time or times as may be agreed with the
Board.
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11.2
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The
holiday year runs from January to December and the Executive may
not carry
forward more than 5 days untaken holiday into the next holiday year
and
any further untaken holiday shall be forfeited. The Executive may
not take
more than 15 days' holiday at one time without prior approval of
the
Board.
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11.3
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Upon
termination of the Executive’s employment the Executive will receive pay
in lieu of accrued but untaken holiday up to the date of termination
of
the Executive’s employment and the Company may deduct an appropriate sum
in respect of days taken in excess of the Executive's pro rata entitlement
from the Executive’s final remuneration One day’s holiday will be
calculated as 1/260th of the Executive's basic annual
salary.
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11.4
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In
the event that notice of termination of this Agreement is served
by either
party, the Company may require the Executive to take any outstanding
holiday during this notice period.
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12
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Sickness
and other absence
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12.1
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If
the Executive is unable to attend at work by reason of sickness or
injury
or any unauthorised reason the Executive must inform the Company
as soon
as possible on the first day of absence (and in any event not later
than
10:00 am on the first day of absence) and, in the case of absence
of
uncertain duration, the Executive must keep the Company regularly
informed
of the reason for the Executive’s continued absence and the Executive’s
likely date of return. The Executive is expected to observe this
rule very
strictly since failure to do so entitles the Company to stop payment
in
respect of each day the Executive fails to notify the
Company.
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12.2
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If
the Executive’s absence, due to sickness or injury, is for less than 7
days, on the Executive’s return to work the Executive shall be required to
immediately complete a self-certification form available from the
Company.
If the Executive’s absence continues for more than 7 consecutive days
(whether or not working days) the Executive must provide the Company
with
a doctor’s certificate from the seventh consecutive day of sickness or
injury. This doctor’s certificate must be provided to the Company promptly
following the seventh consecutive day of absence. If illness continues
after the expiry of the first certificate further certificates must
be
provided promptly to cover the whole period of
absence.
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12.3
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Subject
to the Executive’s compliance with the Company’s sickness absence
procedures (as amended from time to time), the Company may in its
sale and
absolute discretion pay full salary and contractual benefits during
any
period of absence due to sickness or injury dependent on the length
of the
Executive’s service as follows:
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12.3.1
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Continuous
service of over one year and up to two years, 10 days at full
pay;
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| 12.3.2 |
Continuous
service of over two years and up to five years, 3 months at full
pay and
then 3 months at half pay;
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| 12.3.3 |
Continuous
service of over five years, 6 months at full
pay.
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The
above
will apply in any fifty two (52) week period (whether such absence is continuous
or intermittent). Any sums paid include Statutory Sick Pay due in accordance
with applicable legislation in force at the time of absence. Thereafter the
Company will pay Statutory Sick Pay or equivalent benefit to which the Executive
may be entitled subject to the Executive’s compliance with the appropriate
rules.
| 12.4 |
Whether
absent from work or not, the Executive may be required to undergo
a
medical examination by a Company doctor (at the Company’s expense) and the
Executive’s consent will be sought for a report to be sent to the
Company.
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| 12.5 |
The
payment of sick pay in accordance with this Clause 12.5 is without
prejudice to the Company’s right to terminate this Agreement prior to the
expiry of the Executive’s right to payments irrespective of the provisions
of any permanent health insurance.
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| 12.6 |
In
the event the Executive is incapable of performing the Executive’s duties
by reason of injuries sustained wholly or partly as a result of a
third
party’s actions all payments made to the Executive by the Company of
salary or sick pay shall to the extent that compensation is recoverable
from that third party constitute loans to the Executive and shall
be
repaid when and to the extent that the Executive shall recover
compensation for loss of earnings from the third
party.
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| 13 |
Garden
leave
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| 13.1 |
The
Company reserves the right to require that the Executive does not
attend
the Company premises or have contact with other staff or clients
of the
Company for such period as the Company feels is reasonable. This
includes
any period or part of any period during which the Executive is serving
notice as set out in Clause 14 (referred to in this Agreement as
Garden
Leave).
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| 13.2 |
The
Executive will continue to owe all other duties and obligations (whether
express or implied including fidelity and good faith) during such
period
of Garden Leave. During any period of Garden Leave the Executive
shall
continue to receive full pay and benefits excluding any
bonus.
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| 13.3 |
In
the event that the Executive is placed on Garden Leave the Company is
entitled to provide the Executive with no duties or such duties
as the
Company shall in its absolute discretion determine. By placing
the
Executive on Garden Leave, the Company will not be in breach of
this
Agreement or any implied duty of any kind whatsoever nor will the
Executive have any claim against the Company in respect of any
such
action.
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13.4
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During
any period of Garden Leave the Executive will remain readily contactable
and available for work. In the event that the Executive is not available
for work having been requested by the Company to do so, the Executive
will, notwithstanding any other provision of this Agreement, forfeit
any
right to salary and contractual
benefits.
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13.5
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During
any period of Garden Leave the Company may require the Executive
to
deliver up any Confidential Information or property of the Company
and
upon instruction, delete any emails, spreadsheets or other Confidential
Information and the Executive will confirm the Executive’s compliance with
this Clause 13.5 in writing if requested to do so by the
Company.
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13.6
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During
any period of Garden Leave the Company may require the Executive
to take
any outstanding holiday
entitlement.
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13.7
|
During
any period of Garden Leave the Company may request that the Executive
resign from any directorships of the Company and the resignation
shall not
constitute grounds for a claim for constructive dismissal. During
any
period of Garden Leave the Company may remove the Executive from
any
office or the Board of the Company.
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| 14 |
Notice
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14.1
|
If
either party wishes to terminate the Executive’s employment, it should
give to the other 3 months’ notice in writing or any other period mutually
agreed between the Company and the Executive in any circumstances.
This
does not preclude the Company from terminating the Executive’s employment
without notice in certain
circumstances.
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14.2
|
The
Company reserves the right in its absolute discretion to give written
notice to terminate the Executive’s employment forthwith and to make a
payment to the Executive in lieu of salary for all or any unexpired
part
of the notice period. For the avoidance of doubt, any payment in
lieu made
pursuant to this Clause 142 will not include any element in relation
to:
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(a)
|
any
bonus or commission payments that might otherwise have been due to
the
Executive during the period for which the payment in lieu is made;
and
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(b)
|
any
payment in respect of benefits which the Executive would have been
entitled to receive during the period for which the payment in lieu
is
made; and
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(c)
|
any
payment in respect of any holiday entitlement that would have accrued
during the period for which the payment in lieu is
made.
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The
Executive is required to mitigate any loss where this Agreement is terminated
in
accordance with this Clause and any payment in lieu of notice may be reduced
to
take account of mitigation or any failure to mitigate on the Executive’s
part.
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14.3
|
The
Executive employment may be terminated immediately without notice
where
the Executive:
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(a)
|
is
guilty of gross misconduct which includes, but is not limited to,
dishonesty, fraud, theft, being under the influence of alcohol or
drugs at
work, causing actual or threatening physical harm and causing damage
to
Company property;
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(b)
|
is
made bankrupt or makes any arrangement or composition with
creditors;
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(c)
|
commits
a material or repeated breach or non-observance of the Executive’s duties
or any of the provisions of this Agreement or fail to observe the
directions of the Company;
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(d)
|
is
convicted of a criminal offence (other than an offence under the
road
traffic legislation in the United Kingdom or elsewhere for which
a
non-custodial sentence is
imposed);
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(e)
|
becomes
of unsound mind or a patient for the purpose of any statute relating
to
mental health;
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(f)
|
fails
to reach performance requirements set by the Company after receiving
a
written warning regarding the Executive’s performance from the
Company;
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(g)
|
acts
in a manner which in the opinion of the Company, brings the Company
into
disrepute or otherwise prejudices or is considered likely to prejudice
the
reputation of the Company;
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(h)
|
in
the reasonable opinion of the Company is guilty of any serious negligence
in connection with or affecting the business or affairs of the
Company;
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(i)
|
is
unfit to carry out the duties hereunder because of sickness, injury
or
otherwise for an aggregate period of the weeks outlined in clause
12 in
any fifty two (52) week period even if, as a result of such termination,
you would or might forfeit any entitlement to benefit from sick pay
under
clause 12.3;
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(j)
|
becomes
prohibited by law from being a company
director;
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(k)
|
resigns
as a director of the Company or any Group Company otherwise than
at the
request of the Company;
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(l)
|
is
found personally liable for fraudulent or wrongful trading under
sections
213 or 214 of the Insolvency Xxx 0000;
or
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(m)
|
is
convicted of an offence under any statutory enactment or regulation
relating to insider dealing or market
abuse.
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14.4
|
Any
delay or forbearance by the Company in exercising any right of termination
in accordance with Clause 14 will not constitute a waiver of such
right.
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14.5
|
The
termination by the Company of the employment will be without prejudice
to
any claim which the Company may have for damages arising from the
Executive’s breach of this
Agreement.
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15
|
Disciplinary,
dismissal and grievance
procedures
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15.1
|
A
copy of the Company’s disciplinary, dismissal and grievance procedures are
set out in the Staff Handbook (a copy of which has been provided
to the
Executive). These procedures do not form part of the Executive's
contract
of employment.
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15.2
|
Any
grievance concerning the Executive’s employment should be taken up orally
in the first Instance with the Group Managing Director. If the grievance
is not resolved to the Executive’s satisfaction, the Executive should then
refer to the grievance procedure.
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15.3
|
The
Company reserves the right to suspend the Executive on full pay and
benefits at any time for a reasonable period to investigate any matter
that it reasonably believes the Executive may be or may have been
involved.
|
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16
|
Confidential
information and return of company
property
|
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16.1
|
For
the purposes of this Clause and Clauses 13 and 17 Confidential Information
shall include, but not be limited to, information which is not already
in
the public domain and which relates to any and all information (whether
or
not recorded in documentary form or on computer disk or tape), which
may
be imparted in confidence or which is of a confidential nature or
which
the Executive may reasonably regard as being confidential or a trade
secret, concerning the business, business performance or prospective
business, financial information or arrangements, plans or internal
affairs
of the Company, any Group Company or any of their respective customers
including, without prejudice to the generality of the foregoing,
all
client or customer lists, price sensitive information., technical
information, reports, interpretations, forecasts, records, corporate
and
business plans and accounts, business methods, financial details,
projections and targets, remuneration and personnel details, planned
products, planned services, marketing surveys, research reports,
market
share and pricing statistics, budgets, fee levels, computer passwords,
the
contents of any databases, tables, know how documents or materials,
commissions, commission charges, pricing policies and all information
about research and development, the Company’s or any Group Company’s
suppliers’, customers’, and clients’ names, addresses (including email),
telephone, facsimile or other contact numbers and contact names,
the
nature of their business operations, their requirements for services
supplied by the Company or any Group Company and all confidential
aspects
of their relationship with the Company or any Group Company.
|
|
16.2
|
The
Executive will not (except with the prior written consent of the
Board)
except in the proper course of the Executive’s duties during the
continuance of this Agreement, or at any time thereafter:
|
|
(a)
|
disclose
or use for the Executive’s own or for another’s purpose or benefit any
Confidential Information which the Executive may learn while in the
employment of the Company except as required by a court of law or
any
regulatory body or that which may be in or become part of the public
domain other than through any act or default on the Executive’s
part;
|
|
(b)
|
copy
or reproduce in any form or by or on any media or device or allow
others
access to copy or reproduce any documents (including without limitation
letters, facsimiles and memoranda), disks, memory devices, notebooks,
tapes or other medium whether or not eye-readable and copies thereof
on
which Confidential Information may from time to time be recorded
or
referred to (Documents); or
|
|
(c)
|
remove
or transmit from the Company or any Group Company’s premises any Documents
on which Confidential Information may from time to time be
recorded.
|
|
16.3
|
Upon
termination of the Executive’s employment for any reason by either party,
the Executive must immediately return to the Company all company
property
including but not limited to documents, papers, records, keys, credit
cards, mobile telephone, computer and related equipment, security
passes,
accounts, specifications, drawings, lists, correspondence, catalogues
or
the like relating to the Company’s business which is in the Executive’s
possession or under the Executive’s control and the Executive must not
take copies of the same without the Company's express written
authority.
|
|
17
|
Restrictive
covenants
|
|
17.1
|
For
the purpose of this Clause the following expressions shall have the
following meanings:
|
|
Prospective
Customer
means any person, firm, company or other business who was at the
Termination Date negotiating with the Company or with any Group Company
with a view to dealing with the Company or any Group Company as a
customer;
|
|
Restricted
Business means
the development of gaming systems or software solutions for use by
casinos, arcades or AWP operations;
|
Restricted
Customers
means
any person, firm, company or other business who was at any time in the twelve
(12) month period ending with the Termination Date a customer of the Company
or
any Group Company;
Restricted
Period
means
the period of six (6) months from the Termination Date; and
Termination
Date
means
the date on which the Executive’s employment under this Agreement terminates
either due to the Executive or the Company terminating in accordance with the
terms of the Agreement or in breach of the terms of this Agreement.
|
17.2
|
During
the course of the Executive’s employment hereunder the Executive is likely
to obtain Confidential Information relating to the business of the
Company
or any Group Company and personal knowledge and influence over clients,
customers and employees of the Company or any Group Company. The
Executive
hereby agrees with the Company that to protect the Company's and
any and
all Group Company’s business interests, customer connections and goodwill
and the stability of its or their workforce, that the Executive will
not
during the Restricted Period (and in respect of Clauses 17.2(d) and
(e)
only, at any time) unless agreed otherwise in accordance with Clause
17.3:
|
|
(a)
|
compete
with the business of the Company or any Group Company either on the
Executive's own account or for any person, firm or company directly
or
indirectly by having any dealings or transacting business in relation
to
Restricted Business with any Restricted Customer or Prospective Customer
of the Company or Group Company and with whom the Executive personally
and
materially dealt in respect of Restricted Business in the pursuance
of the
employment hereunder in the six (6) months prior to the Termination
Date;
|
|
(b)
|
compete
with the business of the Company or any Group Company either on the
Executive’s own account or for any person, firm or company directly or
indirectly in relation to the supply of Restricted Business by soliciting
or endeavouring to solicit or entice the business or custom of any
Restricted Customer or Prospective Customer and with whom the Executive
personally and materially dealt in respect of Restricted Business
in the
pursuance of the employment hereunder in the six (6) months prior
to the
Termination Date;
|
|
(c)
|
either
on the Executive’s own account or for any person, firm or company directly
or indirectly solicit or entice away or endeavour to solicit or entice
away any director or employee of the Company or any Group Company
with
whom the Executive has had material personal dealings in the twelve
(12)
months prior to the Termination
Date;
|
|
(d)
|
from
the Termination Date for the purpose of carrying on any trade or
business
represent or allow the Executive to be represented or held out as
having
any present association with the Company or any Group Company;
and
|
|
(e)
|
from
the Termination Date carry on any trade or business whose name
incorporates the word Octavian or any deviation or extension thereof
which
is likely or which may be confused with the name of the Company or
any
Group Company.
|
|
17.3
|
The
Employee shall be permitted to canyon any of the actions set out
in Clause
17.2 above notwithstanding those provisions provided always that
the
Employee has the prior written consent of the Company to his carrying
on
such actions and the Employee complies in all respects with any terms
and
conditions set out in that written
consent.
|
|
17.4
|
While
the restrictions set out in Clause 17.2 are considered by the parties
to
be reasonable in all the circumstances, it is agreed that if anyone
or
more of such restrictions shall either taken by itself or themselves
together be adjudged to go beyond what is reasonable in all the
circumstances for the protection of the legitimate interests of the
Company but would be adjudged reasonable if any particular restriction
or
restrictions were deleted or if any part or parts of the wording
thereof
were deleted, restricted or limited in a particular manner, then
the
restrictions set out in Clause 17.2 shall apply with such deletions
or
restrictions or limitations as the case may
be.
|
|
17.5
|
The
restrictions contained in Clause 17.2 are held by the Company for
itself
and on trust for any other Group Company and shall be enforceable
by the
Company on their behalf or by any Group Company (at their request).
The
Executive shall during the employment hereunder enter into direct
agreements with any Group Company whereby the Executive will accept
restrictions in the same or substantially the same form as those
contained
in Clause 17.2.
|
|
17.6
|
In
the event that the Company exercises its rights and places the Executive
on Garden Leave under Clause 13 then the Restricted Period shall
be
reduced by any period/s spent by the Executive on Garden Leave prior
to
the Termination Date.
|
|
17.7
|
During
the Restricted Period the Executive shall provide a copy of the
restrictions contained at Clauses 16 and 17 to any employer or prospective
employer or any other party with whom the Executive becomes or will
become
engaged or provide service or services
to.
|
|
18
|
Intellectual
property
|
|
18.1
|
For
the purpose of this Clause IPRs
shall mean copyrights, patents, rights in inventions, utility models,
rights in know how, trade marks, service marks, unregistered design
rights, registered design rights, database rights, semi-conductor
topography rights and all other intellectual property rights (whether
or
not registered and including registrations and applications for
registration) and all similar rights or forms of protection which
may
exist anywhere in the world.
|
|
18.2
|
It
is contemplated that the Executive may in the course of the Executive’s
employment with the Company create, author or originate (either alone
or
jointly with others) software, inventions, or improvements, enhancements
or modifications to any inventions, technology or software (Inventions),
or databases, data, information, know how, software, literature,
drawings,
designs, works, documents, publications and materials (in printed,
electronic, or any other media or form) (together with Inventions
constituting Works).
|
|
18.3
|
The
Executive will promptly disclose to the Company full details of any
such
Inventions and provide further details, explanations and demonstrations
as
the Company from time to time
requests.
|
| 18.4 |
All
IPRs subsisting in any Works shall be the exclusive property of
the Company.
|
| 18.5 |
To
the extent that such IPRs do not vest automatically in the Company
by
operation of law, the Executive hereby assigns to the Company all
future
copyright, unregistered design rights and database rights, and hereby
agree to assign to the Company all other future IPRs, which the Executive
may own and which may subsist in any Works for their full term of
protection (including any extensions, revivals and renewals) together
with
the right to xxx and claim remedies for past
infringement.
|
| 18.6 |
To
the extent permitted by law the Executive hereby irrevocably and
unconditionally waives in favour of the Company, its licensees and
successors in title, all current and future moral rights (or similar
rights existing in any part of the world) the Executive may have
in
respect of any Works.
|
| 18.7 |
Without
prejudice to the generality of Clause 18.9, during the Executive’s
employment with the Company and thereafter, without limit in time,
the
Executive shall at the request and expense of the Company promptly
assist
the Company:
|
| (a) |
to
file, prosecute, obtain and maintain registrations and applications
for
registration of any IPRs subsisting in, or protecting, any Works:
and
|
| (b) |
to
commence and prosecute legal and other proceedings against any third
party
for infringement of any IPRs subsisting in, or protecting, any Works
and
to defend any proceedings or claims made by any third party that
the use
or exploitation of any Works infringes the IPRs or rights of any
third
party.
|
| 18.8 |
The
Executive shall not disclose the subject matter of any Inventions
to any
person outside the Company without the prior consent of the Company.
The
Executive acknowledges that any unauthorised disclosure of such subject
matter may prevent the Company from obtaining patent or registered
intellectual property protection for such
Invention.
|
| 18.9 |
Subject
to Clause 1810, during the Executive’s employment with the Company and
thereafter without limit in time the Executive shall at the request
and
expense of the Company promptly execute and do all acts, matters,
documents and things necessary or desirable to give the Company the
full
benefit of the provision of this Clause
18.
|
| 18.10 |
Nothing
in this Clause 18 shall be construed, or have the effect of, restricting
the Executive’s rights under sections 39 to 43 (inclusive) of the Patents
Xxx 0000 (as amended from time to
time).
|
| 19 |
Gratuities
|
During
the continuance of the employment hereunder the Executive:
| (a) |
shall
not directly or indirectly procure accept or obtain for the Executive’s
own benefit (or for the benefit of any other person) any payment,
rebate,
discount, commission, vouchers, gift, entertainment or other benefit
outside the normal course of business (Gratuities)
from any third party in respect of any business transacted (whether
or not
by the Executive) by or on behalf of the Company or any Group
Company;
|
| (b) |
shall
observe the terms of any policy issued by the Company or any Group
Company
in relation to Gratuities; and
|
| (c) |
shall,
as soon as reasonably practicable, disclose or account to the Company
or
any Group Company for any Gratuities received by the Executive (or
any
other person on the Executive’s behalf or at the Executive’s
instruction),
|
Provided
that nothing in this Clause shall prevent the Executive from giving or
participating in entertainment or business practices which are customary in
the
business in which the Company or any Group Company is involved from time to
time.
| 20 |
Litigation
assistance
|
|
20.1
|
During
the term of this Agreement and at all times thereafter, the Executive
shall furnish such information and proper assistance to the Company
or any
Group Companies as it or they may reasonably require in connection
with
litigation in which it is or they are or may become a party. This
obligation on the Executive's behalf shall include, without limitation,
meeting with the Company or any Group Company's legal advisors, providing
witness evidence, both in written and oral form, and providing such
other
assistance in the litigation that the Company or any Group Company's
legal
advisors in their reasonable opinion determine. The Company shall
reimburse the Executive for all reasonable out of pocket expenses
incurred
by the Executive in furnishing such information and assistance. Such
assistance shall not require the Executive to provide assistance
for more
than five (5) days in any calendar month. For the avoidance of doubt
the
obligations under this Clause 20 shall continue notwithstanding the
termination of this Agreement.
|
|
21
|
Collective
agreements
|
|
There
are no collective agreements which directly affect the Executive’s terms
and conditions of employment.
|
|
22
|
Data
protection
|
|
22.1
|
For
the purposes of this Clause the following expressions shall have
the
following meanings:
|
|
Personal
Data
means data which relate to a living individual who can be identified
from
those data or from those data and other information which is in the
possession of, or is likely to come into the possession of, the data
controller and includes any expression of opinion about the individual
and
any indication of the intentions of the data controller or any other
person in respect of the
individual.
|
|
Sensitive
Personal Data means
personal data consisting of information as to racial or ethnic origin,
political opinions, religious beliefs or other beliefs of a similar
nature, membership of a trade union (within the meaning of the Trade
Union
& Labour Relations (Consolidation) Act 1992), physical or mental
health or condition, sexual life, the commission or alleged commission
of
any offence or any proceedings for any offence committed or alleged
to
have been committed, including the disposal of such proceedings or
the
sentence of any Court in such
proceedings.
|
|
22.2
|
For
the purposes of the Data Protection Xxx 0000 by signing this Agreement
the
Executive gives the Executive’s consent to the holding and processing of
Personal Data and Sensitive Personal Data relating to the Executive
by the
Company and any Group Company for all purposes relating to the performance
of this Agreement including but not limited
to:
|
| (a) |
administering
and maintaining personnel
records;
|
| (b) |
paying
and reviewing salary and other remuneration and
benefits;
|
| (c) |
undertaking
performance appraisals and reviews;
|
| (d) |
maintaining
sickness and other absence records;
|
| (e) |
taking
decisions as to the Executive's fitness for
work;
|
|
(f)
|
providing
references and information to future employers, and if necessary,
to
governmental and quasi governmental bodies for social security and
other
purposes and to HM Revenue & Customs and National Insurance
Contributions Office;
|
|
(g)
|
providing
the names of employees to the Central Arbitration Committee if requested
to do so;
|
|
(h)
|
providing
information to the future buyers and potential future buyers of the
Company or any other Group Companies or of the business(es) in which
the
Executive works;
|
|
(i)
|
transferring
information about the Executive to a country or territory outside
the
EEA;
|
|
(j)
|
providing
and administering benefits (including if relevant, pension, life
assurance, permanent health insurance and medical insurance);
and
|
|
(k)
|
the
monitoring of communications via the Company’s
systems.
|
|
22.3
|
A
copy of the Company’s policy on employee monitoring is set out in the
Staff Handbook (a copy of which has been provided to the Executive)
and
the Executive hereby consents to the Company monitoring the Executive
for
the purposes specified therein.
|
|
23
|
Third
party rights
|
Save
in
respect of any rights conferred by this Agreement on any Group Company (which
such Group Company shall be entitled to enforce), a person who is not a party
to
this Agreement may not under the Contracts (Rights of Third Parties) Xxx 0000
enforce any of the terms contained within this Agreement.
| 24 |
Group
companies
|
In
this
Agreement Group Company means a subsidiary or affiliate and any other company
which is for the time being a holding company of the Company or another
subsidiary or affiliate of any such holding company (as defined in sections
474(1), 1159 and 1162 of the Companies Act 2006) and Group
Companies
will be
interpreted accordingly.
|
25
|
Board
|
|
In
this Agreement Board
means the board of directors of the Company from time to time or
any duly
authorised committee of the board of directors of the Company or
an
officer nominated by the board of directors as its representative
for the
purposes of this Agreement.
|
|
26
|
Entire
agreement
|
|
These
terms and conditions constitute the entire agreement between the
parties
and supersede any other agreement whether written or oral previously
entered into.
|
|
27
|
Jurisdiction
and choice of law
|
|
This
Agreement shall be governed by and interpreted in accordance with
the laws
of England and 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.
|
|
28
|
Notices
|
|
Any
notices with respect to this Agreement shall be in writing and shall
be
deemed given if delivered personally (upon receipt), sent by facsimile
(which is confirmed) or sent by first class post addressed, in the
case of
the Company, to its registered office and in the Executive’s case
addressed to the Executive’s address last known to the Company.
|
|
Executed as a Deed by
|
)
|
sign here: /s/ H. Brenninkmeijer
|
|
Octavian International Limited
|
)
|
Director
|
|
acting by:
|
)
|
print name: H.Brenninkmeijer
|
|
sign here:
|
||
|
Director/Secretary
|
||
|
print name:
|
|
)
|
sign here: /s/ O.P. Xxxxxxx
|
|
|
Xxxx Xxxxx Xxxxxxx
|
)
|
|
|
In the presence of
|
)
|
print name: O.P. Xxxxxxx
|
|
Witness signature:
|
/s/ Xxxxx Xxxxxxx
|
|
|
Xxxxx Xxxxxxx
|
||
|
Witness address:
|
Fox HillEnd
|
|
|
Xxxxx Xxxx
|
||
|
Xxxxxxx
|
||
|
Xxxxxx
|
||
|
X000 8TH
|
||
|
Chartered Accountant
|
