(1) GENERAL INDUSTRIES PLC (2) COLIN BIRD

Transcription

1 DATED 2011 (1) GENERAL INDUSTRIES PLC (2) COLIN BIRD SERVICE AGREEMENT

2 AGREEMENT CLAUSES CONTENTS Pa2e No. I. Definitions 1 2. Commencement Term and Notice 3 3. Duties and Normal Working Hours 5 4. Location 6 5. Salary and Deductions 6 6. Expenses 7 7. Holiday Entitlement 7 8. Pension 8 9. Incapacity and Sick Pay Collective Agreements Confidential ity Restrictions during Appointment/Outside Interests Restrictive Agreements Know How, Materials and Intellectual Property Rights Termination Directorsh ips Agreement with Other Companies within the Group Corporate Reconstruction Disciplinary and Grievance Procedure Company Computers Data Protection Notices Warranty/Indemnity Entire Agreement Variation Counterparts Third Party Rights Jurisdiction 20

3 DATE: 2011 PARTIES: (1) GENERAL INDUSTRIES PLC incorporated and registered in England and Wales with company number whose registered office is at 56 Station Road, Egham, Surrey TW20 9LF ("the Company"). (2) COLIN BIRD of Maisonnettes Villa 1, Montgomerie, Emirates Hills 3, Dubai, UAE ("the Executive"). AGREEMENT DEFINITIONS AND INTERPRETATION 1.1 In this Agreement the following words and expressions shall have the following meanings:- "Appointment" the employment of the Executive on the terms of this Agreement. "Associated Company": (a) a holding company (as defined by section 1159 of the Companies Act 2006); (b) (c) a subsidiary (as defined by the same section of the Companies Act) or any holding company of the Company; a company over which the Company or any holding company of the Company has control (within the meaning of section 416 of the Income and Corporation Taxes Act 1988); (d) a subsidiary undertaking (as defined by section 1162 of the Companies Act 2006); (e) a trading division of the Company or any other member of the Group. "Board" the board of directors of the Company from time to time or any committee or nominee duly appointed by it; "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 the Company or any Associated Company for the time being confidential to the Company or any Group Company and any trade secrets of the Company or any Group Company including know-how and trade secrets including, without limitation:- (a) (b) any marketing, development, pre-selling or other exploitation of any Intellectual Property or other rights of the Company or any Group Company which has taken place preceding the Termination; any proposed options or agreements to purchase, licence or otherwise exploit any intellectual property of the Company or of any Group Company; any Intellectual Property which is under consideration for development by the Company preceding the Termination Date; corporate and marketing strategy business development and plans sales reports and research results; details of advertising, marketing and promotional campaigns which the Company or any Group Company is to conduct;

4 (c) (d) (e) lists of and identities of existing and prospective contractors and suppliers details of, prospective contractors of the Company or any Group Company and those with whom negotiations have commenced including the terms of business with them and the fees and commissions charged to or by them, discounts and their requirements; proposals plans or specifications for the development of the existing assets and of new assets to be sold or developed; management accounts trading statements statistical information forecasts and other financial reports and budgets; details of employees and officers and their remuneration or benefits provided to them; details of presentations, tenders, projects; joint ventures or acquisitions and developments contemplated offered or undertaken or expansion plans; (I) bespoke software developed or computer related know-how, pass-words, codes, business processes, business logic and information of any of those categories belonging to the Company or any of its customers; and any documents or discs marked "confidential" or any information which the Executive is told or should be reasonably aware is confidential and any information which has been given to the Company or any Group Company in confidence by contractors, suppliers or other persons; "Commencement Date" the date of this Agreement. "Days Salary" 1/260th of the Executive's salary. "directly or indirectly" the Executive being engaged, concerned or interested in a business if he carries it on as a principal or agent; or he is a partner, director, employee, consultant or agent in, of or to any person who carries on the business; he has any direct or indirect financial interest (as shareholder or otherwise) in any person who carries on the business or is a partner, director, employee, secondee, consultant or agent in, of or to any person who has a direct or indirect financial interest (as shareholder or otherwise) in any person who carries on the business. "ERA" means the "Employment Rights Act 1996 as amended; "Executive's family" the Executive's spouse or civil partner and children under the age of 18. "FSA" the Financial Services Authority; "Group" the Company and/or any Associated Company; "Intellectual Property Rights" all rights which may or will subsist now or in the future in any part of the world in the Know How or granted in respect of the Know How, including without limitation, all trade and service marks, trade names and domain names, (whether registered or not) patents, registered designs, design rights, copyright and related rights, database rights, rights in computer software, semiconductor topography rights, rental and lending rights, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, neighbouring rights and moral rights (including in all such cases any applications for 2

5 any such rights or protections and any rights to apply therefore and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection) all utility modules, rights in any secret processes, and Confidential Information or other associated or similar rights or protections; "Know How" all patentable or unpatentable inventions, discoveries, improvements, and processes; all methods, data, formulae, information, specifications, modifications; all copyright works (including without limitation computer programs); all designs (whether or not registered or registrable) and all or other work in each case that is created, developed or conceived by the Executive during his employment with the Company that relates to or is capable of being used in the business for the time being carried on by the Company (or the Group); "Materials" all and any media incorporating Know How or on which Know How is recorded or stored or in which Know How subsists; "Termination" the termination of the Executive's employment with the Company however caused including, without limitation, termination by the Company in repudiatory breach of contract. "UK Listing Authority" the FSA in its capacity as the competent authority for the purposes of part VI of the Financial Services and Markets Act "WTR" the Working Time Regulations 1998 as amended. 1.2 The headings in this agreement are inserted for convenience only and shall not affect its construction. 1.3 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. 1.4 A reference to one gender includes a reference to the other gender. 1.5 The schedules to this agreement form part of (and are incorporated into) this agreement. 2. COMMENCEMENT TERM AND NOTICE 2.1 The Company shall employ the Executive and the Executive shall serve the Company as a Director and the Executive agrees to serve the Company in that capacity or in such other capacity of similar status as may reasonably be required of him on the terms of this Agreement. The Appointment shall commence on the Commencement Date and, subject to the remaining terms of this agreement, shall be for an initial fixed term of 12 months thereafter ("Expiry Date") and shall continue thereafter unless or until terminated by the Company giving the Executive not less than 12 months notice in writing or the Executive giving to the Company not less than 6 months notice in writing, expiring on or after the Expiry Date. 2.2 Notwithstanding clause 2.1, the Company may, in its absolute discretion, lawfully terminate the employment of the Executive at any time by paying to the Executive a sum equal to his basic salary (excluding bonus) and the value of other benefits until the Expiry Date. For the avoidance of doubt nothing in this clause 2.2 shall give rise to any right for the Executive to receive such a payment. 3

6 Notwithstanding clause 2.1, the Company may, in its sole and absolute discretion, terminate the Appointment at any time and with immediate effect by paying a sum in lieu of notice (Payment in Lieu) equal to the basic salary (as at the date of termination) which the Executive would have been entitled to receive under this Agreement during the notice period referred to at clause 2.1 or, if notice has already been given, during the remainder of the notice period) less income tax and National Insurance contributions. For the avoidance of doubt, the Payment in Lieu shall not include any element in relation to: (a) (b) (c) any bonus or commission payments that might otherwise have been due during the period for which the Payment in Lieu is made; 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 any payment in respect of any holiday entitlement that would have accrued during the period for which the Payment in Lieu is made. The Company may pay any sums due under this clause 2.3 in equal monthly instalments until the date on which the notice period referred to at clause 2.1 would have expired if notice had been given. The Executive shall be obliged to seek alternative income during this period and to notify the Company of any income so received. The instalment payments shall then be reduced by the amount of such income. The Executive shall have no right to receive a Payment in Lieu unless the Company has exercised its discretion in clause 2.2. Nothing in this clause 2.3 shall prevent the Company from terminating the Appointment in breach. 2.4 Following service of notice to terminate the Appointment by either party, or if the Executive purports to terminate the Appointment in breach of contract, and, if the Board so decides, at any time during the Appointment/ in order to investigate a reasonable belief that the Executive is guilty of gross misconduct, the Board may by written notice require the Executive not to perform any services (or to perform only specified services) for the Company or any Group Company until the termination of the Appointment ("Garden Leave") Any period of Garden Leave shall not normally exceed 6 months. During any period of Garden Leave the Company shall be under no obligation to provide any work to, or vest any powers in, the Executive, who shall have no right to perform any services for the Company or any Group Company. During any period of Garden Leave the Executive shall: (a) (b) (c) (d) (e) continue to receive his basic salary and all contractual benefits in the usual way and subject to the terms of any benefit arrangement; remain an employee of the Company and bound by the terms of this Agreement; not, without the prior written consent of the Chairman, attend his place of work or any other premises of the Company or any Group Company; not, without the prior written consent of the Chairman, contact or deal with (or attempt to contact or deal with) any officer, employee, consultant, client, customer, supplier, agent, distributor, shareholder, adviser or other business contact of the Company or any Group Company; and (except during any periods taken as holiday in the usual way) ensure that the Chairman knows where he will be and how he can be contacted during each working day and shall comply with any written requests to contact a specified employee of the Company at specified intervals. 4

7 DUTIES AND NORMAL WORIUNG HOURS 3.1 The Executive shall serve the Company as Executive Chairman. The Executive will during the Appointment, whether or not acting in the course of his employment (unless prevented by ill health or injury):- (a) (b) (c) (d) (e) act as a director of the Company and carry out duties on behalf of or accept offices in any other Group Company including, if so required by the Board, acting as an officer or consultant of any such Group Company without further payment; abide by his fiduciary duties to the Company or any Group Company of which he is a director; not do anything that would cause him to be disqualified from acting as a director; do such things as are necessary to ensure compliance by himself and the Company or any Associated Company with the Combined Code on Corporate Governance of the UK Listing Authority (as amended from time to time and to the extent that the code is adopted by the Company); comply with all requirements, recommendations or regulations, as amended from time to time, of the UK Listing Authority (including the Model Code for transactions in securities by directors and certain senior executives of listed companies, a copy of which is available from the Company Secretary), the FSA and all regulatory authorities relevant to the Company or any Group Company and any code of practice issued by the Company (as amended from time to time) relating to dealing in the securities of the Company or any Group Company; comply with the requirements under both legislation and regulation as to the disclosure of inside information; (g) (h) (i) subject to clause 3.2 below, devote the whole of his working time attention and abilities to the business of the Company/Group and will undertake such duties and exercise such powers, loyally and diligently performing them, in relation to the Company or business of the Group, as the Board shall from time to time reasonably and lawfully assign to or vest in him. keep the Board properly and regularly informed (in writing if so requested) about the business of the Company/Group and his activities in that business and provide all such explanations and assistance as it may reasonably require; in all respects comply with all reasonable and lawful directions given from time to time by or under the authority the Board; promote and protect the interests of the Company/Group always giving it the full benefit of his knowledge expertise and skill and not knowingly, deliberately or recklessly doing anything which is to its detriment; (k) not at any time make any untrue, misleading, defamatory or libellous statement relating to the Company/Group or its business; (I) at all times and in all respects conform to and comply with the Articles of Association (as amended from time to time) of the Company and any Group Company of which he is a director; 5

8 (m) (n) (o) (p) procure that all trading and transactions of any nature whatsoever shall be at on a proper commercial and arms length basis; report his own wrongdoing and any wrongdoing or proposed wrongdoing of any other employee or director of the Company or any Group Company to the Board immediately on becoming aware of it; comply with all the Company's rules, regulations, policies and procedures from time to time in force including without limitation any Staff Handbook and the rules of any association or professional body to which the Company and/or the Executive may from time to time belong; use his best endeavours to promote, protect, develop and extend the business of the Company or any Associated Company; 3.2 The Executive's normal hours of work shall be 16 hours each week together with such additional hours during the week and at weekends as may be necessary for the proper discharge of his duties hereunder to the reasonable satisfaction of the Board. He shall not be entitled to receive any additional remuneration for work performed outside his normal hours. 3.3 The Executive acknowledges that because of the autonomous nature of his role the duration of his working time is not measured or monitored or determined by the Company therefore he is a "managing executive" within the definition of the WTR and he is accordingly exempt from the provisions of the WTR governing an average maximum working week of 48 hours, however should any competent authority reach an alternative conclusion, the Executive hereby agrees where necessary for the performance of his duties to work an average in excess of 48 hours per week. Where this is the case the Executive may withdraw his agreement upon giving the Company 3 months written notice. 3.4 The Executive shall hold office as a director of the Company and further shall if and for so long as so required by the Board hold office as a director or other executive of such other companies as the Board shall from time to time specify but shall have no right to hold any such office in any company save the Company and shall resign from such directorships upon request of the Board to do so without right to compensation. 3.5 The Executive consents to the transfer of his employment under this Agreement to an associated employer at any time during the Appointment. 4. LOCATION 4.1 The Executive's normal place of work is at Maisonnettes Villa 1 at Montgomery, Emirates Hills, Dubai, UAE, P.O. Box and the Company's offices and places of business in South Africa or such other place which the Company/Board may reasonably require for the proper performance and exercise of his duties. 4.2 The Executive shall travel (both within South Africa, the United Kingdom and elsewhere) to such extent as the full performance of his duties may from time to time reasonably require. 5. SALARY AND DEDUCTIONS 5.1 The Company shall pay to the Executive a salary at the rate of 25,000 (or the equivalent in any other currency) per annum (which is inclusive of any director's fees to which the Executive might be entitled as a director or holder of any other office within the Group) and which shall accrue rateably from day to day during the Appointment. The salary shall be paid 6

9 by equal monthly instalments in arrears on or before the last date of each calendar month by bank transfer subject to such deductions as are required by law or under this Agreement. 5.2 By signing this Agreement the Executive authorises the Company to withhold the payment of any money owing or due to be paid to him (including without limitation accrued salary and/or holiday pay bonus and commission) if he is in breach of the terms of this Agreement any sums due from him to the Company including, but not limited to, any overpayments, loans or advance made to him by the Company and the Executive further agrees that in the event of his failure to give due notice of termination of this Agreement under clause 2.1 the Company may retain the Executive's salary and or holiday pay which would have accrued in the notice period (without prejudice to its right to claim damages for any additional loss it may suffer) as a result of the Executive's failure to give due notice of termination. 5.3 Any benefits provided by the Company to the Executive or his family which are not expressly referred to in this Agreement shall be provided to and be enjoyed by the Director or his family at the entire discretion of the Company and shall be regarded as ex-gratia and shall not form part of the Director's contract of employment. 6. EXPENSES 6.1 The Company shall reimburse to the Executive all reasonable travelling entertainment hotel and out of pocket expenses wholly incurred by him in or about the proper discharge of his duties provided that the Executive shall provide the Company with such vouchers or other evidence of actual payment of such expenses as the Company may reasonably require. The Executive agrees to abide by any Company expenses policy from time to time in force. 7. HOLIDAY ENTITLEMENT 7.1 In addition to normal Bank and Public Holidays the Executive shall be entitled to 20 working days paid holiday during each calendar year to be taken at such time or times as the Board shall consider most convenient having regard to the requirements of the Company's business. 7.2 The entitlement to holiday accrues pro rata throughout each calendar year. For the calendar years during which the Appointment commences and terminates respectively the Executive shall be entitled to such proportion of his annual holiday entitlement as the period of employment in such calendar year bears to a full calendar year. 7.3 The Executive should take his full holiday entitlement. Any entitlement to holiday which is not taken and remains at the end of any calendar year will lapse and no salary in lieu of such entitlement will be paid. 7.4 On the termination of the Appointment (other than by clause 15.1) or in circumstances where the Executive resigns in breach of clause 2.1, he will be entitled to a Days Salary in lieu of each day's holiday under the WTR entitlement of 20 days per annum that has accrued due but not been taken. For these purposes any paid holiday that has been taken by the Employee (including any paid holiday on public holidays) shall be deemed first to be statutory paid holiday. If he has taken holiday in excess of his accrued entitlement the Company may deduct a Days Salary for each excess day taken from any monies owed to him by the Company. 7.5 The Company may require the Executive to take any outstanding accrued holiday during any period of notice served by either party under clause 2.1 or during which he is on Garden Leave. 7

10 7.6 During any continuous period of absence due to Incapacity of one month or more the Executive shall only accrue statutory holiday under the Working Time Regulations and not contractual holiday (as set out in clause 7.1). PENSION There is no pension scheme in place, although this position will be reviewed if required under the Welfare Reform and Pensions Act 1999 and the Stakeholder Pension Regulations INCAPACITY AND SICK PAY 9.1 Subject to the Executive's compliance with the Company's sickness absence procedures (as amended from time to time) if the Executive expects to be absent from work for any reason he should inform a board director in advance and if he is incapable of attending work due to sickness, injury or otherwise he must contact, or have contacted on his behalf, a board director/manager by telephone as soon as is reasonably practicable on the first day of absence and regularly thereafter every 2 days. Provided he does so he shall receive any statutory sick pay due in accordance with applicable legislation in force at the time of absence and subject to the production of satisfactory evidence from a registered medical practitioner in respect of any period of absence in excess of 7 consecutive days (including weekends) and the production of a self-certificate for periods of absence of less than 7 days. 9.2 The Company may further deduct from his pay the amount of any Social Security benefits the Executive may receive or be entitled to receive or any payments received by the Executive by virtue of any sickness or accident benefit operated by or on behalf of the Company (except insofar as such amounts represent reimbursement of medical or nursing fees or expenses incurred by the Executive). 9.3 The Executive agrees to consent to medical examinations (at the Company's expense) at a place to be nominated by the Executive and by a doctor agreed to by the Company should the Company so require. The Executive agrees that any report produced in connection with any such examination may be disclosed to the Company and the Company may discuss the contents of the report with the relevant doctor. 9.4 If any sickness or injury which prevents the Executive from carrying out his duties ("Incapacity") is or appears to be occasioned by actionable negligence, nuisance or breach of any statutory duty on the part of a third party in respect of which damages are or may be recoverable, the Executive shall in return for the Company continuing to pay him, take such action as the Company may reasonably require to pursue a claim for damages against the third party. He will immediately notify the Board of that fact and of any claim, compromise, settlement or judgment made or awarded in connection with it and all relevant particulars that the Board may reasonably require. The Executive shall if required by the Company/Board, refund to the Company that part of any damages or compensation recovered by him relating to the loss of earnings for the period of the Incapacity as the Board may reasonably determine less any costs borne by him in connection with the recovery of such damages or compensation, provided that the amount to be refunded shall not exceed the total amount paid to the Executive by the Company in respect of the period of incapacity. The Executive will provide evidence of any sums recovered by him and will hold these proceeds on trust for the Company in a separate bank account, to apply them in repayment of this obligation. 9.5 The Company may terminate the Appointment by giving the notice specified in clause 2.1 or as a result of clause 15 applying even when, as a result of such termination, the Executive 8

11 would or might forfeit any entitlement to benefit from sick pay under clause 9 solely on grounds of the Executive's Incapacity where such an entitlement or benefit would or might be forfe ited. 9.6 The Executive warrants that to the best of his knowledge information and belief he is aware of no illness conditions or disabilities which will or may materially affect the performance of his duties hereafter and undertakes to notify the Company without delay if he shall become subject to such illness conditions or disability. 10. COLLECTIVE AGREEMENTS There is no collective agreement which directly affects the Appointment. 11. CONFIDENTIALITY 11.1 The Executive acknowledges that in the course of the Appointment he will have access to Confidential Information. The Executive has therefore agreed to accept the restrictions in this clause 11. The Executive must not during his employment with the Company (unless in the proper performance of his duties and then only on a need to know basis) or after its termination (unless expressly authorised by the Board or as required by law): use for his own benefit or for the benefit of any other person; disclose divulge or communicate to any person; or through any failure to exercise all due care or permit the unauthorised disclosure of any Confidential Information or trade secrets or secret manufacturing process relating to the business of the Company /Group which has come into his possession by virtue of his employment or in respect of which the Company or Group Company may be bound by a duty of confidentiality to a third party. The Executive should use his best endeavours to prevent the publication of such information These restrictions will not apply after his Appointment has terminated to information which the Executive can clearly show is in the public domain otherwise than as a result of breach by him of this clause Nothing in clause 11.1 is intended to prevent the Executive from being able to make a permitted disclosure under 43A of the Employment Rights Act In circumstances where the Executive feels it is necessary to make such a disclosure he should raise the issue first with the Board or if the Executive's concern relates to certain members of the Board, to an Officer or Officers of the Company whom he believes are not involved or implicated in the relevant matter The Executive shall not during the Appointment make otherwise than for the benefit of the Company any copies of Confidential Information or notes or memoranda relating to any matter within the scope of the business of the Company/Group or relating to any of its dealings or affairs with suppliers agents distributors or customers and the Executive shall neither during the employment nor afterwards use or permit to be used any such copies notes or memoranda otherwise than for the benefit of the Company. All such copies notes or memoranda made by the Executive and all copies thereof shall be the property of the Company and shall be left at its registered office upon the termination of the Appointment. 9

12 11.5 The Executive shall execute and comply with such written undertakings to preserve the secrecy of the Confidential Information or other such documents as the Company shall from time to time reasonably require. 12. RESTRICTIONS DURING APPOINTMENT/OUTSIDE INTERESTS 12.1 The Executive shall not without the prior written consent of the Board (such consent not to be unreasonably withheld) be (directly or indirectly) engaged or concerned or interested in any other business (whether or not that business competes with the Company/Group) or the holding of any other office other than one associated with voluntary work save for any engagement, concern or interest in any other business or other office disclosed to the Company prior to the Commencement Date Notwithstanding clause 12.1, nothing shall prohibit the Executive holding (directly or through nominees) or being interested in bona fide investments representing not more than 3% of any class of shares or securities in any company whether or not they are listed or dealt on any recognised stock exchange (within the meaning of s207 of the Financial Services Act 1986). If such interest exceeds 3% of the total issued share capital then the Chairman shall be notified within 5 days in writing The Executive confirms that he has fully disclosed to the Company (and that he shall continue promptly and fully to do so throughout the Appointment) all circumstances in respect of which there may be a conflict of interest between the Executive (and including within this obligation the Executive's family) and the Company/Group The Executive shall notify the Board promptly upon the occurrence of any event which the Executive believes could reasonably be considered to constitute a major new development within the Group's sphere of activity which is not public knowledge and which may; by virtue of the effect of those developments on the Company's assets and liabilities or financial position or on the general course of its business, have a significant effect on the value of the Company/Group; or significantly affect the Company/Group's financial condition, business performance or expected performance The Executive will comply with any code of dealing in the Company/Group's shares, which is adopted by it from time to time a copy of which will be available from the Company secretary upon request. The Executive also agrees that he will not deal in securities of the Company if such dealing would be in breach of the Model Code for Directors' Dealing in securities forming part of the AIM Rules issued by the London Stock Exchange and which have been adopted by the Company The Executive will comply with the requirements of Part 43 of the Companies Act 2006 and will not act so as to commit an offence under Part V of the Criminal Justice Act 1993 or under any order or regulation relating to insider dealing The Executive agrees to disclose to the Company/Board any matters relating to his spouse or civil partner (or anyone living as such), children or parents which may, in the reasonable opinion of the Company/Board, be considered to interfere, conflict or compete with the proper performance of the Executive's obligations under this agreement. 10

13 12.8 During the Appointment the Executive shall not incur on behalf of the Company or any Group Company any capital expenditure in excess of such sum as may be authorised from time to time by resolution of the Board; or enter into on behalf of the Company or any Group Company any commitment, contract or arrangement which is otherwise than in the normal course of business or is outside the scope of his normal duties or is of an unusual or onerous or long term nature; or engage any person on terms which vary from those established from time to time by resolution of the Board; or dismiss any employee of the Company or any Group Company without giving proper statutory or (if longer) contractual notice or without following the normal disciplinary procedure and in any case the Executive shall immediately report any dismissal effected by him and the reason for it to the Board. 13. RESTRICTIVE AGREEMENTS 13.1 For the purpose of this clause 13:- (a) a "Customer" means (i) (ii) a person who at any time during the Relevant Period was a customer or client of the Company or Group (whether or not goods or services were actually provided during such period) or to whom at the expiry of the Relevant Period the Company or Group Company was actively and directly seeking to supply goods or services in either case for the purpose of a Relevant Business; and with whom the Executive or someone reporting directly to him had dealings at any time during the Relevant Period or were in possession of confidential information about such a Customer in the performance of their duties to the Company or Group Company. (b) "Relevant Services" means goods or services identical or similar to or competitive with those which at the termination of the Executive's employment; ( i ) the Company or any Group Company was supplying or actively and directly seeking to supply to a Customer for the purpose of a Relevant Business; (11) the Supplier was supplying or had agreed to supply or was actively and directly negotiating to supply to the Company or Group Company for the purposes of a Relevant Business. (c) "Relevant Business" means (i) (ii) the business of mineral exploration, mine development and mining; or any other business of the Company or any Group Company in which pursuant to his duties the Executive was materially involved in a senior capacity at any time during the Relevant Period. (d) "Territory" means the areas of Eastern Cape Province and Limpopo Province in South Africa. A business will be within the Territory if either any such business in which the Executive is to be involved is located or to be located within the Territory or it is conducted or to be conducted wholly or partly within the Territory; (e) "Employee" means a person who is employed by or who renders services to the Company or any Group Company in a Relevant Business who has client responsibility/influence over customers and/or knowledge of confidential information 11

14 and who in either case was so employed or so rendered services during the Relevant Period and who had dealings with the Executive during that period (0 "Relevant Period" means the period of 2 years (or period of employment if shorter than 2 years) ending on the last day on which the Executive actively worked during the Appointment; (g) (h) a "Supplier" means anyone who at the expiry of the Relevant Period was supplying goods or services to the Company or any Group Company for the purpose of a Relevant Business or had agreed (or was actively and directly negotiating) to make such supplies and with whom the Executive or anyone directly reporting to him had dealings during the Relevant Period in performance of his duties to the Company or any Group Company or were in possession of confidential information about such Supplier relating to their relationship with the Company or any Group Company. This includes any individual who provided services to the Company/Group by way of consultancy and with whom the Executive dealt with to a material extent during that period; references to acting directly or indirectly include (without prejudice to the generality of that expression) references to acting alone or jointly with or by means of any other person It is agreed that in the course of his duties to the Company the Executive has and will continue to become intimately concerned with the business and affairs of the Company/Group and by reason of his association with the Company, the Executive has acquired and will continue to acquire considerable knowledge and know how relating to the Company/Group and its business The Executive acknowledges that if he is not restrained from competing with the Company/Group in the Rare Earth sector as provided for herein, the Company/Group will potentially suffer considerable economic prejudice, including loss of custom and goodwill. Accordingly, the Company considers it essential in order to protect the Group's proprietary interests that the Executive agrees to a restraint of trade undertaking in favour of the Company and other companies in the Group to ensure that the Executive will be precluded from carrying on certain activities which will be harmful to the business of the Company/Group The Executive covenants with the Company (for itself and as trustee and agent for each Group Company) that he shall not during the Appointment and for the periods set out below after the termination of the Appointment (less any period during which the Executive is on Garden Leave) (except with the prior written consent of the Board) directly or indirectly do or attempt to do any of the following:- (a) for 12 months undertake carry on or be employed engaged with or interested in any capacity with companies which are carrying out the business of mineral exploration in South Africa, which is in the nature of the Relevant Business; (b) for 12 months undertake carry on or be employed engaged or interested in any capacity in either any business or other enterprise which is competitive with or similar to a Relevant Business within the Territory or any business or enterprise an objective or anticipated result of which is to compete with the Relevant Business within the Territory; (c) for 12 months entice induce or encourage a Customer to transfer or remove custom from the Company or any Group Company or adversely affect the terms on which such a Customer does business with the Company or any Group Company; 12

15 (d) for 12 months solicit canvass approach tender for or accept business from a Customer for the supply for Relevant Services; (e) for 12 months be employed by a Customer in the connection with the supply of Relevant Services; (f) (g) for 12 months solicit entice induce or encourage a Employee to leave or seek to leave his or her position with the Company or any Group Company for the purpose of being involved in or concerned with either the supply of Relevant Services or a business which competes with or is similar to a Relevant Business or which plans to compete with a Relevant Business; for 12 months solicit, interfere with, tender for or endeavour to entice away from the Company or any Group Company any contract, project or business or the renewal of any of them carried on by the Company/Group which is current or in progress during the Relevant Period or which was in the process of negotiation during the Relevant Period and in respect of which the Executive had personal dealings with any customer, client, agent or Supplier to the Company or any Group Company within the Relevant Period. (h) at any time after the termination of the Executive's employment, present himself or allow himself to be held out or be presented as being in any way connected with or interested in the business of the Company or in the business of any company in the Group 13.5 Each sub-clause and part of each sub-clause of this clause 13 constitutes an entirely separate and independent restriction (including the defined expressions in clause 13.1) and in the event that any such restriction is determined as being unenforceable in whole or in part for any reason such unenforceability will not affect the remaining restrictions or in the case of part of a restriction being unenforceable, the remainder of that restriction The Executive acknowledges that before entering into this Agreement he had the opportunity to obtain legal advice and that each of the restrictions in this clause goes no further than is necessary for the protection of the Company and Group's legitimate business interests Without prejudice to the Company's right to enforce this Agreement in respect of any Group Company, it is agreed that the restrictions in this clause 13 shall enure for the benefit of any Company and the same shall be enforceable against the Executive by that Company as if it were a party to this Agreement. 14. KNOW HOW, MATERIALS AND INTELLECTUAL PROPERTY RIGHTS 14.1 The parties foresee that the Executive may make, discover or create Know How and/ or Materials in the course of his duties and the Executive hereby agrees and acknowledges that because of the nature of his duties and the particular responsibilities arising from his role he has at all times a special obligation to further the interests of the Company and the Group The Executive shall immediately disclose all Know How and Materials to the Company Subject to clause 14.4 below, all Know How, Materials and Intellectual Property Rights shall belong to the Company and the Executive shall, at the request and expense of the Company, give and supply all assistance as may be requisite to enable the Company or any Group Company to exploit the Know How, Materials and Intellectual Property Rights to the best advantage and shall execute all documents and do all things which may be necessary or desirable for obtaining patent or other protection for the Intellectual Property Rights in such parts of the world as may be specified by the Company or the Group and for vesting the same in the Company or any other Group Company as it may direct. 13

16 14.4 In so far as s39 of the Patents Act 1977 provides that, as between the Executive and the Company, any invention made by the Executive shall belong to the Executive, then that invention shall belong to the Executive and the Company shall treat all information disclosed to it by the Executive in respect of that invention as confidential information, the property of the Executive Without prejudice to 14.3 above, the Executive hereby assigns to the Company by way of assignment of copyright all vested, contingent and future rights of copyright subsisting in the Know How whether in existence now or in the future created for all the classes of act which by virtue of the Copyright Designs and Patents Act 1988 the owner of the copyright has the exclusive right to do throughout the world of the whole period for which copyright is to subsist The Executive irrevocably appoints the Company to be his attorney in his name and on his behalf to sign, execute or do any such instrument or thing and generally to use his name for the purpose of giving to the Company (or its nominee) the full benefit of the provisions of this clause 14 and in favour of any third party a certificate in writing signed by any director or the secretary of the Company that any instrument or act falls within the authority conferred by this clause 14 shall be conclusive evidence that such is the case Rights and obligations under this clause shall continue in force after termination of this Agreement in respect of Know How, Materials and Intellectual Property Rights made during the Executive's employment and shall be binding on his representatives All Intellectual Property Rights shall immediately be disclosed to the Company by the Executive and shall together with any form of media on which the Intellectual Property Rights are stored belong to the Company (or such Associated Company or customer as the Company may direct) and all subsisting Intellectual Property Rights shall belong to the Company and the Executive hereby assigns all rights in and to apply for registration of all Intellectual Property Rights to the Company except to the extent that the same is not permitted by the provisions of the Patents Act 1977, 14.9 The Company in its sole discretion shall be entitled to decide whether to apply for registration of any subsisting Intellectual Property Rights and to decide whether to exploit the same The Executive shall at the request and expense of the Company: apply (or join with the Company or any Group Company or a customer in applying) for any patent or such other Intellectual Property Right protection in such part or parts of the world as the Company or any Group Company may require; and execute all documents and do all acts and things necessary for vesting any patent or other such Intellectual Property Right protection in the Company or as it may direct without prejudice to clause 14.1 the Executive hereby assigns to the Company by way of assignment of copyright all vested contingent and future rights of copyright subsisting in the Intellectual Property Rights whether in existence now or in the future created for all the classes of act which by virtue of the Copyright Designs and Patents Act 1998 the owner of the copyright has the exclusive right to do throughout the world of the whole period for which copyright is to subsist Save as permitted by the Company the Executive shall keep the Intellectual Property Rights secret and confidential and shall not disclose or permit the disclosure of the Intellectual 14

17 Property Rights to any person, firm or corporation and in particular but without limitation, the Executive shall not allow or permit any person to have access to inspect documents drawings machines processes methods models or any other thing relating to the Intellectual Property Rights. Without prejudice to the generality of the foregoing the Executive will not do anything or permit anything to be done to endanger the validity of any patent or other protection or registration, but shall at the cost of the Company render all possible assistance to obtain, maintain, extend or prolong any patent or other Intellectual Property Right The Executive irrevocably and unconditionally waives all moral rights in the Intellectual Property Rights. 15. TERMINATION 15.1 The Company may (notwithstanding any other provision of this Agreement) at any time summarily by notice in writing to the Executive terminate the Appointment with immediate effect and without payment in lieu of notice if the Executive: commits any serious or persistent breach or non-observance of any of the provisions of this Agreement; or is guilty of any gross misconduct, neglects, fails or refuses to carry out any of the duties properly assigned to him under this Agreement; or is convicted of any criminal offence other than an offence which in the reasonable opinion of the Board does not affect his position as a director or as an employee of the Company/Group (excluding an offence under road traffic legislation in the United Kingdom or elsewhere for which he is not sentenced to any kind of imprisonment whether immediate or suspended); or becomes of unsound mind or a patient under any statute relating to mental health; or is declared bankrupt or makes any arrangement with or for the benefit of his creditors or has a county court administration order made against him under the County Court Act 1984; or is unable by reason of Incapacity to perform his duties under this agreement for an aggregate period of 26 weeks in any 52 week period even if, as a result of such termination, the Employee would or might forfeit any entitlement to benefit from sick pay under clause 9.1, save that the Company shall not terminate the Appointment solely on grounds of the Employee's Incapacity where such an entitlement or benefit would be forfeited if he is prohibited by law from being a director or taking part in the management of the Company/Group or ceases to be a director of the Company without the consent of the Board; or fails or ceases to meet the requirements of any regulatory body whose consent is required to enable him to undertake all or any of his duties under the Appointment or is guilty of a serious breach of the rules and regulations of such regulatory body or of any compliance manual of the Company/any Group Company; or 15

18 is guilty of a breach of the rules or regulations as amended from time to time of the UK Listing Authority (including the Model Code for transactions in securities by directors of listed companies), the FSA or any regulatory authorities relevant to the Company/any Group Company or any code of practice issued by the Company (as amended from time to time) if he behaves in a manner whether on or off duty which is likely in the reasonable opinion of the Board to bring the Company/Group into disrepute or prejudice its interests or which seriously impairs the Executive's abilities to perform his duties; or ceases to be eligible to work in the United Kingdom; or is guilty of a serious breach of any rules issued by the Company from time to time regarding its electronic communications systems is, in the reasonable opinion of the Board, seriously negligent or incompetent in the performance of his duties; The rights of the Company under clause 15.1 are without prejudice to any other rights that it might have at law to terminate the Appointment or to accept any breach of this agreement by the Executive as having brought the agreement to an end. Any delay by the Company in exercising its rights to terminate under this clause 15.1 shall not constitute a waiver of them Upon the termination of the Appointment the Executive shall promptly: resign at the request of the Company/Group without claim for compensation from all offices (if any) held by him in the Company or Group and the Executive irrevocably authorises the Company to appoint an individual in his name and on his behalf to execute any documents and do all things requisite to effect these resignations; immediately return to the Company all documents, books, materials, records, correspondence, papers and information (on whatever media and wherever located) relating to the business or affairs of the Company or the Group or their business contacts, customers or suppliers, without him or anyone on his behalf keeping copies, along with any keys, telephone or computer equipment of any kind and PDAs owned by the Company, Know Flow Materials and Intellectual Property and all notes memoranda and other records made by the Executive during his employment and relating to the business of the Company/Group and any other property of the Company/any Group Company, which is in his possession or under his control and irretrievably delete any information relating to the business of the Company/any Group Company stored on any magnetic or optical disk or memory and all matter derived from such sources which is in his possession or under his control outside the Company's premises; and provide a signed statement that he has complied fully with his obligations under this clause ; In the event of resignation or termination as provided for in clause 15.1 in the period of two years following the date hereof, then any shares in the Company held by the Executive and/or connected persons shall, at the Company's request, be offered for sale by the employee forthwith using the Company's brokers as the employee's agent. 16. DIRECTORSHIPS 16

19 16.1 Except with the prior approval of the Board, or as provided in the articles of Association of the Company/any Group Company of which he is a director, the Executive shall not resign as a director of the Company/any Group Company voluntarily do or refrain from doing any act whereby his office as a director of the Company/Group is or becomes liable to be vacated The Executive will not do anything that would cause him to be disqualified from continuing to act as a director of the Company/Group or disqualify himself from acting as a director of the Company by failing to acquire or retain qualification shares prescribed by the Articles of Association from time to time of the Company; 16.3 If during the Appointment the Executive ceases to be a director of the Company/any Group Company (otherwise than by reason of his death, resignation or disqualification pursuant to the Articles of Association of the Company or the relevant Group Company, as amended from time to time, or by statute or court order) the Appointment shall continue with the Executive as an employee only and the terms of this agreement (other than those relating to the holding of the office of director) shall continue in full force and effect. The Employee shall have no claims in respect of such cessation of office. 17. AGREEMENTS WITH OTHER COMPANIES WITHIN THE GROUP This Agreement is entered into by the Company for itself and in trust for each Group Company. Insofar as this Agreement relates to any other member of the Group the Company shall be entitled to limit the action it takes to such action as it may in its discretion consider reasonable to take as trustee hereunder. The Executive agrees that he will at the request and cost of the Company enter into a further agreement with any member of the Group whereby he will accept corresponding restrictions to the restrictions in this Agreement (or such of them as the Company in its discretion shall deem appropriate. 18. CORPORATE RECONSTRUCTION If the Appointment is terminated at any time by reason of any reconstruction or amalgamation of the Company or any Group Company, whether by winding up or otherwise, and the Executive is offered employment with any concern or undertaking involved in or resulting from such reconstruction or amalgamation on terms which (considered in their entirety) are no less favourable to any material extent than the terms of this Agreement, the Executive shall have no claim against the Company or any such undertaking arising out of or connected with such termination. 19. DISCIPLINARY AND GRIEVANCE PROCEDURE 19.1 The Executive is subject to the Company's disciplinary and grievance procedures, copies of which are available from the Company Secretary. These procedures do not form part of the Executive's contract of employment In order to investigate a complaint of misconduct against the Executive and to allow the Company to carry out such investigations as it deems appropriate it may suspend the Executive on full pay in accordance with the provisions of clause 2.3 for a period of up to 8 weeks during any period in which the Company is carrying out a disciplinary investigation into any alleged acts or defaults of the Executive If the Executive wishes to appeal against a disciplinary decision he may apply in writing to the Chairman in accordance with the Company's disciplinary procedure. 17

20 19.4 If the Executive wishes to raise a grievance, he may apply in writing to the Chairman in accordance with the Company's grievance procedure. 20. COMPANY COMPUTERS The Executive will be bound by the Company computer use, and internet policy and other communication policies in force from time to time. The Executive acknowledges that his computer use and other communications including telephone calls and use of faxes may legitimately be intercepted, recorded and monitored by the Company and its employees and agents at any time and from for the lawful business purposes outlined in its policies and that accordingly he has no reasonable expectation of privacy. 21. DATA PROTECTION 21.1 The Executive confirms that he has read and understood the Company's data protection policy, a copy of which is contained in the Staff Handbook available from the Company Secretary. The Company is entitled to make changes to its data protection policy, but will notify employees in writing of any such changes The Executive consents to the Company/any Group Company processing data relating to him for legal, personnel, administrative and management purposes and in particular to the processing of any sensitive personal data (as defined in the Data Protection Act 1998) relating to him, including, as appropriate: (a) (b) (c) (d) information about the Executive physical or mental health or condition in order to monitor sick leave and take decisions as to the Executive's fitness for work; the Executive racial or ethnic origin or religious or similar information in order to monitor compliance with equal opportunities legislation; information relating to any criminal proceedings in which the Executive has been involved for insurance purposes and in order to comply with legal requirements and obligations to third parties; and any other sensitive data to be processed, for example, political opinions, union membership or sexual life The Company may make such information available to any Group Company, and payroll administrators, regulatory authorities, governmental or and potential purchasers of the Company or the business in which the Executive works. 22. NOTICES Any notice given under this agreement shall be in writing and signed by or on behalf of the party giving it and shall be served by delivering it personally, or sending it by pre-paid recorded delivery or registered post to the relevant party at (in the case of the Company) its registered office for the time being and (in the case of the Employee) his last known address (until notified otherwise by the Employee such address shall be: c/o Unit 8, Block B l s' Floor, Stoney Ridge Office Park, Cnr Witkoppen and Waterford Place, Kleve Hill Park, Paulshof, South Africa), or by sending it by fax to the fax number notified by the relevant party to the other party. Any such notice shall be deemed to have been received: (a) if delivered personally, at the time of delivery; 18

21 (b) (c) in the case of pre-paid recorded delivery or registered post, 48 hours from the date of posting; and in the case of fax, at the time of transmission. In proving such service it shall be sufficient to prove that the envelope containing such notice was addressed to the address of the relevant party and delivered either to that address or into the custody of the postal authorities as a pre-paid recorded delivery or registered post or that the notice was transmitted by fax to the fax number of the relevant party. 23. WARRANTY/INDEMNITY 23.1 The Executive warrants to the Company that he is not entering into this Agreement in breach of any agreement with or obligation owed to a third party and that he will not be restricted or prevented from undertaking or performing his duties by such an agreement. The Executive will indemnify the Company against all costs (including legal fees on a full indemnity basis), claims, liabilities and expenses which the Company incurs in connection with any claim that the Executive is not at liberty to enter into this Agreement The Executive agrees that he will always bring this Agreement to the attention of any future prospective employers or partners The Executive warrants that he is entitled to work in the United Kingdom without any additional approvals and will notify the Company immediately if he ceases to be so entitled during the Appointment. 24. ENTIRE AGREEMENT Each party acknowledges and agrees with the other party (the Company acting on behalf of itself and as agent for each company in the Group) that: (a) (b) (c) this Agreement together with any documents referred to in it constitutes the entire agreement and understanding between the Executive and the Company and any Group Company and supersedes any previous agreement between them relating to the Appointment (which shall be deemed to have been terminated by mutual consent); in entering into this agreement neither party nor any Group Company has relied on 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 Executive's employment under this agreement which is not expressly set out in this agreement or any documents referred to in it ("Pre-Contractual Statement");and the only remedy available to each party for breach of this agreement shall be for breach of contract under the terms of this agreement and no party shall have any right of action against any other party in respect of any Pre-Contractual Statement. Nothing in this agreement shall, however, operate to limit or exclude any liability for fraud. 25. VARIATION No variation of this agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties. 19

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