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1
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Start Date Conditionality and Continuous
Employment
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1
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2
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1
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3
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1
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4
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2
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5
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2
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6
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2
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7
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4
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8
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5
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9
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7
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10
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7
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11
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8
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12
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Restrictions on other Activities
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8
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13
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9
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14
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10
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15
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10
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16
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Termination of Employment
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11
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17
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12
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18
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Restrictions after Termination of
Employment
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13
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19
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15
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20
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Obligations on Termination and
otherwise
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16
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21
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16
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22
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Disciplinary Policy and Grievance
Policy
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19
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23
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19
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24
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Conditions Precedent to this Contract of
Employment
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20
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25
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Contracts (Rights of Third Parties) Act
1999
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20
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26
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20
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27
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20
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28
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20
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29
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20
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This
Contract of Employment is made on 19th December 2008
between :
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(1)
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Claire’s Accessories UK
Limited (the
“ Company ”) whose registered company number is:
03115188 and whose registered office is Unit 4 Bromford Gate,
Bromford Lane, Birmingham, B24 8DW; and
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(2)
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Kenneth Wilson
of 12 Forrest Avenue,
Aberdeen, AB15 5TG (“ you ”).
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This
Contract sets out the terms on which you are employed by the
Company.
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1
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Start Date Conditionality and
Continuous Employment
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1.1
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Your employment will begin on 18
January 2009 (the “ Commencement Date
”).
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1.2
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Your period of continuous employment
with the Company will begin on the “Commencement
Date”.
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1.3
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In
the event that your employment hereunder has not commenced by 18
January 2009 for any reason whatsoever, then the condition
precedent to this Contract of Employment shall not have been
fulfilled and this Contract of Employment shall fall away and be of
no effect and without any liability on the part of the
Company.
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1.4
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You
hereby warrant and confirm that you are not prevented from
accepting this role or from performing fully your duties under this
contract by any obligation, duty or restriction owed to any other
person whomsoever or whatsoever, contractual or otherwise, and that
you are legally able to live and work in the UK.
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1.5
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This Contract of Employment shall be
for an initial fixed period of 2 years from the Commencement
Date (“Initial Term”) but shall be terminable in
accordance with clause 16 below.
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2
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Job Title
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Your job title is President,
Claire’s Europe. You will report to the Chief Executive
Officer for the time being of Claire’s Stores Inc.
(“CEO”) and/or the Chairman of the Board of
Claire’s Stores Inc. and/or, always commensurate with your
role and status in the Company, such other designee as is
appropriate.
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3
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Duties and Term
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3.1
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During your employment you
shall:-
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3.1.1
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devote the whole of your time,
attention and abilities to the business of the Company;
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3.1.2
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faithfully and diligently exercise
such powers and perform such duties and hold such offices within
the Company and/or any Affiliate as may from time to time be
assigned to you;
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3.1.3
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comply with all reasonable and
lawful directions given to you, including undertaking additional
duties from time to time;
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3.1.4
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comply with all the Company’s
rules, regulations, policies and procedures from time to time in
force;
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1
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3.1.5
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use
your best endeavours to promote, protect, develop and extend the
business(es) of the Company and of the Affiliates.
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3.2
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This Contract of Employment shall be
for the Initial Term set out at clause 1.5 above and thereafter for
an indefinite term if neither party confirms termination on expiry
of such fixed term but where such confirmation is subject to notice
in accordance with clause 16 below.
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4
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Place of Work
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4.1
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You
will be based at the Company’s principal office in the UK
from time to time currently, Unit 4, Bromford Gate, Bromford Lane,
Birmingham, England and you are required to work at such other
location(s), whether on a temporary or permanent basis, as may be
from time to time be necessary or desirable for the proper
performance of your duties hereunder or as otherwise notified to
you in writing.
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4.2
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You
are required to travel, in order fully to perform your duties
hereunder, on a worldwide basis and you agree that this travel
forms part of your duties.
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4.3
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It
is not currently anticipated that you will be required to work
outside the UK for continuous periods of more than 1 month. In
such event, if at all, as much notice as is practicable will be
given to you.
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5
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Hours of Work
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5.1
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The
Company’s normal hours of work are 8.30 am to 5.30 pm Monday
to Friday, and you are required to work such hours together with
such further hours (without additional pay) as may be necessary or
desirable in order for you fully to discharge your duties
hereunder. You are expected to exercise personal professional
judgment in determining the number of hours you need to work and
you are overall expected to work such hours as enable you to
deliver your obligations to the satisfaction of the Chief Executive
Officer for the time being of Claire’s Stores Inc. and/or
such other person as may be notified to you in writing from time to
time.
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5.2
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As
an autonomous decision-maker you agree that the limit on average
weekly working hours specified in Regulation 4(1) of the
Working Time Regulations 1998 (the “Regulations”) does
not apply to your employment hereunder.
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6
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Salary
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6.1
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Your gross basic salary is
£365,000 per annum (“ Base Salary ”),
accruing on a daily basis. You have the opportunity, initially
prior to the commencement of your employment hereunder or, in
future at least 2 weeks prior to each anniversary of the
Commencement Date (and for the avoidance of doubt, it is and will
remain your responsibility to make such election (as indicated
below) in a timely manner and not later than as indicated above),
to make an irrevocable election for a salary sacrifice of up to a
maximum of £50, 000 per annum from Base Salary to a personal
pension plan of your choice. For the avoidance of any doubt, any
election must be made by you prior to the anniversary of the
Commencement Date so that your election is made prior to the year
in which you become entitled to the Base Salary for that year. If
you wish to take advantage of such opportunity, it is your
responsibility to ensure that all appropriate documentation is
completed and is completed at the appropriate time in order validly
to effect the salary sacrifice that you wish to make, and the
Company accepts no responsibility whatsoever for any failure on
your part so to do. In the event that any such documentation or the
timing of such documentation is not completed so as fully to give
effect to your wish in this regard, you are fully responsible for
any resulting tax and/or National Insurance liability together with
all interest and/or penalties thereon and shall fully indemnify the
Company, on demand, in respect of the same. In the event that you
make a salary sacrifice then gross annual salary shall be reduced
by the amount of such salary sacrifice but Base Salary shall
continue to be the unreduced annual sum for the purposes of the
remaining parts of this Contract of Employment.
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2
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6.2
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Base Salary (less any lawful
deductions or withholdings including, without limitation,
deductions or withholdings on account of United Kingdom income tax
or national insurance contributions (or equivalent income tax or
social security contributions under the laws of any relevant
jurisdiction)) will be paid monthly in arrears on or about the last
day of each calendar month.
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6.3
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Subject as hereinafter provided, for
financial year ending 30 January 2010, you will receive a
guaranteed bonus of £365,000 (less any lawful deductions or
withholdings including, without limitation, deductions or
withholdings on account of United Kingdom income tax or national
insurance contributions (or equivalent income tax or social
security contributions under the laws of any relevant
jurisdiction)). Save that in the case only of guaranteed bonus and
not any other bonus, you shall be entitled to such guaranteed bonus
unless, as of the relevant payment date, you have given notice for
any reason pursuant to clause 16.1.1 or 16.1.2 or your employment
is terminated by the Company pursuant to clause 16.1.3. Where your
employment has been terminated by the Company not pursuant to
clause 16.1.3, you shall receive the guaranteed bonus in the next
relevant payroll following the relevant guaranteed bonus payment
date. If, on such payment date, you are reasonably suspected of
misconduct or otherwise of any of the grounds of summary
termination described in clause 16.1.3, the Company may withhold
payment of such bonus pending the resolution of any disciplinary
investigation and/or proceedings and if the outcome of such
investigation/proceedings is that the Company gives you summary
notice of the termination of your employment in accordance with
clause 16.1.3 no bonus will be payable. For the avoidance of doubt
withholding such payment pending the outcome of disciplinary
investigation and/or proceedings shall not be deemed to be
disciplinary action.
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6.4
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For
financial years subsequent to that ending on 30 January 2010,
and subject as hereinafter provided, you may be considered for a
non-pensionable annual bonus at the sole and absolute discretion of
the Company in accordance with the terms and conditions from time
to time of such Claire’s bonus plan (if any) as may from time
to time be in force and notified to you in writing as applicable to
you. You shall be notified of the performance criteria and/or
targets applicable for the relevant financial year within a
reasonable period of the start of such financial year. Any such
discretionary bonus shall be paid less any lawful deductions or
withholdings including, without limitation, deductions or
withholdings on account of United Kingdom income tax or National
Insurance contributions (or equivalent income tax or social
security contributions under the laws of any relevant
jurisdiction). The maximum amount of such annual bonus that may,
subject to the terms and conditions from time to time of the
applicable Claire’s bonus plan (if any), be payable to you
hereunder shall not exceed 122.5% of your Base Salary (less
applicable withholdings) but without taking account or reducing by
any valid salary sacrifice.
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6.5
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Any
discretionary bonus payable under clause 6.4 shall hereafter be
referred to as “ Bonus ”.
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6.6
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Receipt of Bonus shall be
conditional on you being In Employment on the relevant payment date
for the purposes of Bonus in respect of the relevant financial
year.
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3
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6.7
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For
the purposes hereof, “In Employment” shall mean
that you are employed by the Company in the role of President,
Claire’s Europe on the relevant payment date for the purposes
of Bonus in respect of the relevant financial year and as at that
date you (i) have not given the Company notice of termination
of your employment (for any reason); (ii) have not been given
notice of the termination of your employment by the Company
(including but not limited to by reason of gross misconduct or
otherwise pursuant to clause 16.1.3) for any reason other than by
reason of genuine redundancy; and (iii) are not long term
absent from work (including but not limited to by reason of a
sabbatical or other agreed long term absence).
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6.8
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If
as of the relevant payroll payment date for the purpose of Bonus in
respect of the relevant financial year, you are reasonably
suspected of misconduct or otherwise of any of the grounds of
summary termination described in clause 16.1.3, the Company may
withhold payment of the Bonus pending the resolution of any
disciplinary investigation and/or disciplinary proceedings and, if
the outcome of such investigation/proceedings is that the Company
gives you summary notice of the termination of your employment in
accordance with clause 16.1.3 no Bonus will be payable. For the
avoidance of doubt withholding such payment pending the outcome of
disciplinary investigation and/or proceedings shall not be deemed
to be disciplinary action.
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6.9
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Receipt of Bonus in any one year
will not entitle you to Bonus in any subsequent year.
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6.10
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At
any time during your employment, or upon its termination, the
Company shall be entitled to (and you agree that it may) deduct
from Base Salary or any other payment due to you in respect of your
employment (including but not limited to your final salary payment
and Bonus) any monies due from you to the Company or an Affiliate.
For the avoidance of doubt this includes the deduction of any
overpayment of remuneration or other payments, whether made by
mistake or through misrepresentation or for any other
reason.
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7
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Holidays
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7.1
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The
holiday year runs from 1 January to 31 December
(inclusive).
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7.2
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You
are entitled to 28 days’ paid holiday in each complete
holiday year of employment by the company (“ Holiday
Entitlement ”), accruing on a daily basis. This will be
pro-rated according to your period of employment by the Company in
such year, in the year of joining and leaving the Company and the
resulting entitlement will be rounded up to the nearest whole
day.
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7.3
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You
are required to exercise professional judgment with regard to the
timing of your holidays.
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7.4
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You
cannot carry forward Holiday Entitlement from one holiday year to
the next.
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7.5
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Additionally, you are entitled to
the normal English bank and public holidays, with pay.
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7.6
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On
termination of employment you will be paid in respect of any
Holiday Entitlement which has then accrued in respect of your final
holiday year of employment but which has not been taken at the date
of the termination of your employment. The Company may require you
to take any unused Holiday Entitlement during your notice period.
If you have taken holiday in excess of your Holiday Entitlement at
your termination date, the Company may deduct from your final
salary payment and/or any other amounts it owes to you an amount
that is equal to one two hundred and sixtieth of your net Base
Salary payable under clause 6.1 multiplied by the number of excess
days of holiday taken.
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4
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8
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Other Benefits
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8.1
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Expenses
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The
Company will reimburse you for all reasonable expenses (including
any value added tax or equivalent chargeable thereon) incurred by
you in the performance of your duties under this Contract of
Employment, provided that the expenses are incurred with the
approval of the Company and you produce such evidence of
expenditure as the Company may reasonably require.
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8.2
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Company Car or Company Car
Allowance
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8.2.1
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Subject as hereinafter provided and
provided that you hold and maintain a current and valid UK driving
licence, you shall have the choice of either:
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a) a
lease hire car in the Company’s name (“Car”) of a
make and model specified by the Company to reflect your status and
seniority and the Company shall bear the cost of the road tax,
insurance and maintenance of the Car; or
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b) a
car allowance in the sum of £15,000 per annum payable with
and in the same manner as Base Salary but shall not be treated as
Base Salary and shall not be pensionable and you shall be
responsible for the purchase or lease hire of a car of a suitable
make and model given your status in the Company and shall be
responsible for road tax, insurance and maintenance
costs.
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8.2.2
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Regardless of your choice of either
option a) or b) above (which choice shall be made only once by you
and is then irrevocable), the Company shall reimburse you for the
cost of petrol for business mileage, subject to its normal
reimbursement procedures.
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8.3.1
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There is no pension scheme
applicable to you and the Company shall not make any contribution
towards any personal pension scheme that you may
maintain.
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8.4
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Permanent Health
Insurance
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8.4.1
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Without prejudice to the
Company’s right to terminate your employment at any time in
accordance with clause 16.1.3 or otherwise for cause,, you shall be
eligible to participate in any permanent health insurance scheme
obtained by the Company, subject to:
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(i)
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the
terms of the scheme, as amended from time to time;
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(ii)
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the
rules or insurance policy of the relevant insurance provider, as
amended from time to time; and
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(iii)
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your satisfying the normal
underwriting requirements of the relevant insurance provider of the
scheme and the premium being at a rate which the Company considers
reasonable.
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8.4.2
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Full details of the scheme (if any)
will be available from the Company.
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8.4.3
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The
Company shall only be obliged to make payments to you under any
scheme if it has received payment from the insurance provider for
that purpose.
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5
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8.4.4
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The
Company in its sole and absolute discretion reserves the right to
discontinue, vary or amend the scheme (including the level of your
cover) at any time on reasonable notice to you.
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8.4.5
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If
the insurance provider refuses for any reason to provide permanent
health insurance benefit to you, the Company shall not be liable to
provide to you any replacement benefit of the same or similar kind
or to pay any compensation in lieu of such benefit.
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8.4.6
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If
you are receiving benefits under the Company’s permanent
health insurance scheme and without prejudice to its other rights
in such circumstances:
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(i)
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you
shall, on request, resign as a director of the Company and any
Affiliate if so requested by the Company; and
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(ii)
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to
the extent applicable the Company shall be entitled to appoint a
successor to you to perform all or any of the duties required of
you under the terms of this Contract of Employment and your duties
shall be amended accordingly.
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8.4.7
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If
the Company does not, for any reason, operate such a scheme, you
shall be entitled to reimbursement of the premiums paid by you in
obtaining personal permanent health insurance which pays you up to
66% of Base Salary after a waiting period of 6 months provided such
level of premiums is first agreed by the Company but where such
agreement shall not be unreasonably withheld or delayed.
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8.4.8
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Where you are receiving a
reimbursement pursuant to 8.4.7 above and the Company at any time
obtains permanent health insurance, you shall no longer have any
entitlement to reimbursement pursuant to 8.4.7 and shall be
required to participate in such Company scheme subject to its
terms.
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8.5
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Private Medical
Insurance
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8.5.1
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You
and your life partner and dependent children shall be eligible to
participate in the Company’s private medical insurance
scheme, subject to:
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(i)
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the
terms of the scheme, as amended from time to time;
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(ii)
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the
rules or insurance policy of the relevant insurance provider, as
amended from time to time; and
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(iii)
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your each satisfying the normal
underwriting requirements of the relevant insurance provider of the
private medical insurance scheme and the premium being at a rate
which the Company considers reasonable.
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8.5.2
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Full details of the Company’s
private medical insurance scheme are available from the
Company.
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8.5.3
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If
the insurance provider refuses for any reason to provide private
medical insurance benefit to you or your life partner or your
dependent children or any one of them (as applicable) the Company
shall not be liable to provide you or your life partner or your
dependent children or any one of them (as applicable) with any
replacement benefit of the same or similar kind or to pay any
compensation in lieu of such benefit.
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8.5.4
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The
Company in its sole and absolute discretion reserves the right to
discontinue, vary or amend any scheme (including the level of cover
provided) at any time, without compensation, on reasonable notice
to you.
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6
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8.6
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Relocation Assistance
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8.6.1
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Where taking up employment pursuant
to this Contract of Employment will result in the necessity for you
to relocate to the UK from any other country, you shall be entitled
to relocation assistance in accordance with the Company’s
current relocation policy along with such other customary and
reasonable relocation expenses as may be agreed between you and the
Company.
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9
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Life Assurance Cover
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9.1
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You
shall be eligible to participate in the Company’s life
assurance scheme (which scheme shall provide for a payment equal to
4 times Base Salary) subject to:
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(i)
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the
terms of the scheme, as amended from time to time;
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(ii)
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the
rules or assurance policy of the relevant assurance provider, as
amended from time to time; and
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(iii)
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your satisfying the normal
underwriting requirements of the relevant assurance provider of the
Company’s life assurance scheme and the premium being at a
rate which the Company considers reasonable.
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9.1.2
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Full details of the Company’s
life assurance scheme are available from the Company.
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9.1.3
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If
the assurance provider refuses for any reason to provide life
assurance scheme benefit in respect of you the Company shall not be
liable to provide you any replacement benefit of the same or
similar kind or to pay any compensation in lieu of such
benefit.
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9.1.4
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The
Company in its sole and absolute discretion reserves the right to
discontinue, vary or amend any scheme (including the level of cover
provided) at any time, without compensation, on reasonable notice
to you.
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10
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Equity Awards
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10.1
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Subject to any and all prior
approvals required by the board of directors or any duly appointed
committee thereof and subject always to the terms of the
Claire’s Inc. Amended and Restated Stock Incentive Plan and
subject to you commencing your employment on the Commencement Date
and further subject to you executing an Option Agreement in a form
acceptable to the Company, you will receive, on or around the
Commencement Date:
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10.1.1
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the
grant of 160,000 options which shall vest over time in accordance
with the relevant vesting schedule appropriate to your status and
role;
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10.1.2
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the
grant of 160,000 options which shall vest in accordance with
performance criteria, which criteria shall be determined by the
Company and set out in the relevant vesting schedule appropriate to
your status and role;
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10.1.3
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the
grant of 80,000 “stretch” options which shall vest in
accordance with your exceeding further performance criteria
determined by the Company and set out in the relevant vesting
schedule appropriate to your status and role;
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10.1.4
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the
opportunity to purchase up to 30,000 shares of common stock of
Claire’s Inc at a purchase price of US$10 per share with
matching “BOGO” shares in Claire’s Inc, for each
share purchased by you, to vest in 2 equal instalments over the
immediately following 2 years.
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7
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11
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Sickness and Injury
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11.1
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If
you are absent from work due to sickness or injury, you must inform
the Company no later than 8.00am on the first day of
absence.
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11.2
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If
you are away from work for seven calendar days or less, you must
complete a self-certification form. For absences of more than seven
calendar days you must provide a medical certificate from your
doctor. Further medical certificates will be required for the
remainder of the period of your absence.
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11.3
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The
Company reserves the right, at any time, to require you to undergo
a medical examination at the Company’s expense. You agree
that the medical adviser may disclose and discuss the results of
the examination with the Company and, subject to your statutory
rights, you further agree that you will provide, at the
Company’s request, a copy of any report produced by your
doctor on any medical condition, illness or injury relevant to your
continued employment.
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11.4
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Without prejudice to its right to
terminate your employment at any time, the Company will continue to
pay Base Salary (inclusive of any Statutory Sick Pay) and will
provide all contractual benefits for 3 months (in aggregate)
of absence due to sickness or injury in any rolling 12 months.
Thereafter, any further payments or benefits will be provided
solely at the Company’s discretion up to a maximum possible
period of 6 months (in aggregate) in any rolling 12 month
period. Receipt of such benefits on any one occasion will not
entitle you to such benefits on any subsequent occasion.
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11.5
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Any
payments to which you are entitled under any social security or
national insurance legislation or equivalent legislation in the
relevant jurisdiction, whether or not claimed, may be deducted from
any payments to you under clause 11.4, as well as all compensation
received by you from a third party in relation to an absence from
work due to sickness or injury.
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12
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Restrictions on other
Activities
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12.1
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During your employment you shall not
(except with the prior written consent of the Chief Executive
Officer for the time being of Claire’s Stores Inc. and/or
such other person as may be notified to you in writing from time to
time) accept any appointment to any office in relation to any body,
whether corporate or not, or be directly or indirectly employed,
engaged, concerned or interested in any other business or
undertaking whatsoever, save for the business(es) of the Company
and/or any Affiliate, on behalf of such company, provided that this
shall not prohibit the holding (directly or through nominees) for
bona fide investment purposes only of investments listed on the
London Stock Exchange or in respect of which dealing takes place in
the Alternative Investment Market on the London Stock Exchange or
any recognised stock exchange provided that not more than 3 per
cent. of the issued shares or other securities of any class of any
one company shall be so held (“a Permitted
Investment”). At all times you are required to comply with
relevant Company policies and mandatory laws and/or regulations
concerning the holding of and dealing with securities.
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12.2
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If,
with the prior written consent of the Chief Executive Officer for
the time being of Claire’s Stores Inc. and/or such other
person as may be notified to you in writing from time to time, you
accept any other appointment you must keep them accurately informed
of the amount of time you spend working under that appointment.
Consent to such appointment may be withdrawn on
1 month’s notice if the Chief Executive Officer for the
t
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