CLYDE &
CO
OCTAVIAN INTERNATIONAL
LIMITED
and
MR OWEN PETER MOFFITT
Service Agreement for
Director
Agreement
Dated
16 October
2008
Between:
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OCTAVIAN INTERNATIONAL LIMITED
a company registered in England and
Wales under number 04185988 which is trading from Bury House, 1-3
Bury Street, Guildford, Surrey, GU2 4AW ( Company
); and
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PETER
MOFFITT of 5
Carrington Drive, Flaxton, QLD 4560, Australia
(Executive).
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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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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
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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
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The Company
reserves the right to appoint any other person to act jointly or in
conjunction with the Executive.
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2.1
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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
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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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The Executive place of work will be at 1-3 Bury
Street, Guildford, Surrey, GU2 4AW 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.
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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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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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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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use all
reasonable endeavours to promote the interests and reputation of
the Company or any Group Company; and
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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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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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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 Act 2000 and any rules, regulations or procedures made
by the Company and/or and Group Company from time to
time.
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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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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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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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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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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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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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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
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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
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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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7.1
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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
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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
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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
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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)
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the Executive
has not been employed throughout the whole of the relevant
financial year of the Company; or
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(b)
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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)
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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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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)
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the
Company’s private medical cover scheme;
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(b)
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the
Company’s travel insurance scheme.
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8.2
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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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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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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
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A
contracting-out certificate is not in force in respect of the
Appointment.
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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.
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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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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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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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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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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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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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Sickness and other absence
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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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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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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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Continuous
service of over one year and up to two years, 10 days at full
pay;
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12.3.2
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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
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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
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