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Title: Dated
Date: 8/19/2016
Industry: Construction Services     Sector: Capital Goods

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1 January 2013


Employment contract




Coda Octopus Products, Inc.




Mr. Blair Cunningham























Term of appointment






Place of work



Compensation and Benefits









Outside interests



Confidential information



Intellectual Property rights






Obligations upon termination



Post-termination restrictions



Reconstruction and amalgamation






Entire Agreement and previous contracts









Governing law and jurisdiction








THIS AGREEMENT is dated January 01, 2013





Coda Octopus Products, Inc. a Delaware corporation with its principal place of business at 4020 Kidron Road, Lakeland, Florida Fl 33811 USA (“ Company” or “Employer” ).




Mr. Blair Cunningham of 10025 Chatham Oaks Court, Orlando, Florida 32836 ( Employee ).


Agreed terms







The definitions and rules of interpretation in this Clause 1.1 apply in this Agreement.




Appointment: the employment of the Employee by the Company on the terms of this Agreement.




Associated Employer: has the meaning given to it in the Employment Rights Act 1996.




Board: the board of directors of the Company (including any committee of the board duly appointed by it).




Capacity: as agent, consultant, director, employee, owner, partner, shareholder or in any other capacity.




Coda Board: the board of directors of Coda Octopus Group, Inc. (“COGI” or “Parent Company”)




Company Board: the board of directors of the Company (Coda Octopus Products, Inc.)




Commencement Date: the date of this Agreement.




Confidential Information: information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, affairs and finances of any Group Company for the time being confidential to any Group Company and trade secrets including, without limitation, technical data, know-how relating to the business of any Group Company including without limitation its products, business plan, product development milestones and/or roadmap, key customers, key suppliers’, key resources and their capabilities.




Duty Station: Employer’s principal address.








Employment IPRs: Intellectual Property Rights created by the Employee in the course of his employment with the Company (whether or not during working hours or using Company premises or resources).




Employment Inventions: any invention which is made wholly or partially by the Employee at any time in the course of his employment with the Company (whether or not during working hours or using Company premises or resources, and whether or not recorded in material form).




Group Company or Group: the Company, any company of which it is a Subsidiary (its holding company) and any subsidiaries of the Company or those of its parent company or of any such holding company.




Home Country: Scotland




Home Visits: visits by the Employee and his immediate family (wife and children) to his Home Country from which he was relocated to perform the duties.




Incapacity: any sickness or injury which prevents the Employee from carrying out his duties.




Intellectual Property Rights (IPRs): patents, rights to inventions, copyright and related rights, trade marks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.




Pre-Contractual Statement: any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the Employee’s employment under this Agreement which is not expressly set out in this Agreement or any documents referred to in it.




Restricted Business: any business involved in business activities similar to those of the Group’s Marine Products Business including in developing software, hardware, firmware or the like for the subsea market




Restricted Customer: any firm, company or person who, during the eighteen (18) months prior to Termination, was a customer of or in the habit of dealing with the Company or any Group Company with whom the Employee had contact or about whom he became aware or informed in the course of his employment.




Restricted Person: any person who is or was an employee, consultant or affiliate of the Company during the preceding six months prior to Termination.




Special Provisions: those set out in Clause 7 of this Agreement.




Staff Handbook: the Company’s staff handbook in force from time to time




Subsidiary: in relation to a company (a holding company) means a subsidiary (as defined in section 1159 of the Companies Act 2006) and any other company which is a subsidiary (as so defined) of a company which is itself a subsidiary of such holding company.




Termination: the termination of the Employee’s employment with the Company however caused including, without limitation, termination by the Company in repudiatory breach of contract.








The headings in this Agreement are inserted for convenience only and shall neither affect its construction nor its interpretation.




A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, or re-enactment and includes any subordinate legislation for the time being in force made under it.




A reference to one gender includes a reference to the other gender.




The schedules to this Agreement form part of (and are incorporated into) this Agreement.




Term of appointment




The Company shall employ the Employee on a full time basis and the Employee shall serve the Company on the terms of this Agreement.




The Appointment shall be deemed to have commenced on the Commencement Date and shall continue, subject to the remaining terms of this Agreement, until terminated by either party giving the other not less than twelve (12) months prior notice in writing unless the provisions of Clause 11.1 apply.




During the term of this Agreement either party can give notice to terminate without giving reason, as long as the notice period is twelve months. Notice is not effective unless it is in writing and dated and addressed to the Group CEO or the Company Board.




The Employee consents to the transfer of his employment under this agreement to an Associated Employer at any time during the Appointment.














The Employee shall serve as President of Technology and CEO of Coda Octopus Products Inc.




The broad terms of the role description for the Appointment is set forth in Schedule 1 hereto. Notwithstanding the description set forth in Schedule 1 and unless otherwise agreed in writing with the Company Board, the Employee shall perform all duties as are consistent with this position and such other duties that the Company may reasonably assign to the Employee from time to time.




During the Appointment the Employee shall:




act as a director the Company;






comply with the bye-laws of the Company (as amended from time to time) and Group companies which he is a Director;






abide by any statutory, fiduciary or common-law duties to the Company and Group companies to which he is a serving Director;






not do anything that would cause him to be disqualified from acting as a director in any of the jurisdictions that the Parent Company or Company has its Subsidiaries;






unless prevented by Incapacity, devote the whole of his or her time, attention and abilities to the business of the Company and the Group.






diligently exercise such powers and perform such duties as may from time to time be assigned to him by the Company;






comply with all reasonable and lawful directions given to his or her by the Company;






use his or her best endeavours to promote, protect, develop and extend the business of the Company and the Group.



The Employee consents to the Company monitoring and recording any use that she makes of the Company’s electronic communications systems for the purpose of ensuring that the Company’s rules are being complied with and for legitimate business purposes.




The Employee shall comply with any electronic communication systems policy that the Company may issue from time to time.




The Employee shall comply with any rules, policies and procedures set out in the Staff Handbook. To the extent that there is any conflict between the terms of this agreement and the Staff Handbook, this agreement shall prevail.








All documents, manuals, hardware and software provided for the Employee’s use by the Company, and any data or documents (including copies) produced, maintained or stored on the Company’s computer systems or other electronic equipment (including mobile phones), remain the property of the Company.




Place of work




The Employee’s normal place of work is at the principal place of business of the Company.



Compensation and Benefits




The Employee shall be paid an annual salary of $160,000 (“Base Salary”). This salary takes effect from January 1, 2016.




The Base Salary shall be paid by the Company on a bi-weekly basis.




The Employee’s salary shall be reviewed by the Group Chief Executive, annually. The Company is under no obligation to award an increase following a salary review. There will be no review of the salary after notice has been given by either party to terminate the Appointment.




The Company may deduct from the salary, or any other sums owed to the Employee, any money owed to any Group Company by the Employee.




The Employee shall be entitled to participate in the Company’s Bonus Scheme in effect from time to time under such terms and conditions as the Board may determine.




Health Insurance and other benefits




Your life insurance, death in service benefits which you enjoyed during your employment with the Associated Employer prior to your relocation to the current Duty Station shall continue.




In addition, during the term of his employment, the Employee shall be entitled to participate in the Company’s permanent health insurance scheme, Dental, Vision, STD, LTD and Group Life Plans at the Company’s expense, subject to:









the terms of the Company’s scheme, as amended from time to time;






the rules or insurance policy of the relevant insurance provider, as amended from time to time; and






the Employee satisfying the normal underwriting requirements of the relevant insurance provider and the premium being at a rate which the Company considers reasonable.



Full details of the scheme are available from the Group’s Acting CFO.




Where the Employee is relocated he will be entitled to the benefits that may be applicable to that duty station.




The Company in its sole and absolute discretion reserves the right to discontinue, vary or amend the scheme (including the level of the Employee’s cover) at any time on reasonable notice to the Employee.




If the insurance provider refuses for any reason to provide permanent health insurance benefit to the Employee, the Company shall not be liable to provide to the Employee any replacement benefit of the same or similar kind or to pay any compensation in lieu of such benefit.



Special Provision




The Employee was relocated from his Home Country to the current Duty Station.




In recognition that the Employee’s Home Country and therefore a large part of his family life is in his Home Country, as part of the remuneration package, every 15 months for a period of 5 years from 1 November 2016, the Company shall pay the reasonable costs for Home Visits. These costs shall extend to and limited to airfare from Duty Station (economy class) and accommodation for up to 7 days for Home Visits and other reasonable costs which are direct and incidental to the Home Visits (the latter referred to as “Incidental Home Visit Costs). The Incidental Home Visit Costs shall not exceed $1,000 per trip.




The Company shall provide Compassionate Leave for Home Country.




For a period of 3 years from 1 November 2016, in the event that the Group’s Marine Products Business sells in excess of $14m of its real time 3D solutions in any one financial year (not cumulatively over the 3 year period but within each discrete financial year), the Company shall pay the Employee a one off payment of $250,000 in recognition that he is the champion of the Company’s technology. The CEO shall within 30 days of filing the Company’s audited financial statements, provide the Employee with a breakdown of sales of 3D solutions in that financial year. This shall include sonar software, hardware but excludes pan & tilt sales.












The Company shall reimburse against receipts or other evidence which is satisfactory to the Company, all reasonable and approved expenses wholly, properly and necessarily incurred by the Employee in the course of the Appointment.




Business expenses incurred by the Employee shall be claimed within 3 months of these being incurred.




The Employee shall abide by the Company’s policies on expenses as communicated to his or her from time to time.




Any credit card supplied to the Employee by the Company shall be used only for business expenses incurred by his or her in the course of the Appointment.







The Employee shall be entitled 25 days’ paid holiday in each holiday year together with the usual public holidays. If the Appointment commences or terminates part way through a holiday year, the Employee’s entitlement during that holiday year shall be calculated on a pro-rata basis rounded up to the nearest whole day. Holiday period runs from 1 January to 31 December.




Holiday shall be taken at such time or times as shall be approved in advance by the Board. The Employee shall not without the consent of the Board carry forward any accrued but untaken holiday entitlement to a subsequent holiday year unless the Employee has been unavoidably prevented from taking such holiday during the relevant leave year by virtue of a period of statutory maternity, paternity or adoption leave.




The Employee shall have no entitlement to any payment in lieu of accrued but untaken holiday save on termination of the Appointment. If either party has served notice to terminate the Appointment, the Board may require the Employee to take any accrued but unused holiday entitlement during the notice period.




Outside interests




Subject to Clause 10.2, during the Appointment the Employee shall not, except as a representative of the Group or with the prior written approval of the Board, whether paid or unpaid, be directly or indirectly engaged, concerned or have any financial interest in any Capacity in any other business, tr

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