(f) At any time after the Actual Completion Date Project Co committing a material breach of its obligations under this Agreement (other than as a consequence of a breach by the Board of its obligations under this Agreement) which results in the criminal investigation, prosecution and conviction of Project Co or any Project Co Party or the Board under the Health and Safety Regime (an "H&S Conviction") provided that an H&S Conviction of a Project Co Party or the Board shall not constitute a Project Co Event of Default if, within ninety (90) Business Days from the date of the H&S Conviction (whether or not the H&S Conviction is subject to an appeal or any further judicial process), the involvement in the Project Operations of each relevant Project Co Party (which in the case of an individual director, officer or employee shall be deemed to include the Project Co Party of which that person is a director, officer or employee) is terminated and a replacement is appointed by Project Co in accordance with Clause 50.5 (Sub-contracting)141;
In determining whether to exercise any right of termination or right to require the termination of the engagement of a Project Co Party pursuant to this Clause 44.1(f), the Board shall:
(i) act in a reasonable and proportionate manner having regard to such matters as the gravity of any offence and the identity of the person committing it; and
(ii) give all due consideration, where appropriate, to action other than termination of this Agreement;
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141 Boards shouldnote that this provision is intended to address the situation where Project Co is responsible for a significant contravention of health and safety law which would (in the Board's perception) make Project Co's position untenable but might not otherwise be caught by the "material breach" event of default (at paragraph (d)) because there may not (arguably) be a material impact on the Board's Clinical Services. An example of such a situation would be Project Co poisoning a number of patients via the catering service.