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Exhibit 4.1
-----------------------
DATED
EXECUTIVE SERVICE
AGREEMENT
BLUEGUM GROUP PTY LIMITED
("BLUEGUM")
("EXECUTIVE")
MALLESONS STEPHEN JAQUES
Solicitors
Governor Phillip Tower
1 Farrer Place
Sydney NSW 2000
Telephone (612) 9296 2000
Fax (612) 9296 3999
DX 113 Sydney
Ref: MMS/NWE
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<TABLE>
<S> <C> <C>
Contents Executive Service Agreement 1
1 Interpretation 1
2 Termination of Executive Services Contract 4
3 Term 4
4 Appointment 4
5 Remuneration 5
6 Superannuation 5
7 Long Term Compensation Incentive 6
8 Relocation 7
9 Leave 7
10 Payment during absence on medical grounds 7
11 Confidential Property 8
12 Secrecy 8
13 Restrictions on other activities of the Executive 9
14 Employment Restrictions 10
15 Termination 11
16 Divestment of Shares upon Cessation of Employment 13
17 Notices 13
18 Entire agreement 14
19 Waiver 14
20 Severance 14
21 Governing law 14
</TABLE>
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1
EXECUTIVE SERVICE AGREEMENT
DATE:
PARTIES: BLUEGUM GROUP PTY LIMITED (ACN 0073 759 145) having its
registered office at Level 20, Australia Square, 264-278
George Street, Sydney, NSW 2000 ("BLUEGUM"), and
____________ ("EXECUTIVE")
RECITALS:
A. The Executive entered into an Executive Services
Contract dated ______________with Bluegum
("EXECUTIVE SERVICES CONTRACT").
B. This agreement sets out the terms and conditions of
employment of the Executive as agreed between
Bluegum and the Executive in October 1998 in
conjunction with Bluegum entering into the
Subscription Agreement with GGEP and as a result of
demands made by GGEP of Bluegum in consideration
for its provision of equity funding under the
Subscription Agreement.
C. Bluegum and the Executive agree that from the
Effective Date the Executive Services Contract is
terminated and all rights of the Executive under
the Executive Services Contract expired.
D. Bluegum agrees to employ the Executive on the terms
of this agreement and the Executive agrees to the
employment on those terms.
OPERATIVE PROVISIONS:
1 INTERPRETATION
1.1 The following words have these meanings in this agreement
unless the contrary intention appears.
BLUEGUM OPTIONS means the options granted to the Executive under clause
7.2.
BOARD means the board of directors of Bluegum.
BUSINESS PLAN means the business plan and budgets of Bluegum for each 12
month financial year period, a copy of which, for the purposes of
identification, is initialled by the Executive and one of the persons
signing this agreement on behalf of Bluegum.
CHIEF EXECUTIVE OFFICER means the chief executive officer of Bluegum
from time to time.
CONFIDENTIAL INFORMATION means any information in respect of Bluegum's
and the Group's business which is, or is regarded by Bluegum as
confidential and which is not in the public domain and includes, but is
not limited to, anything contained in or comprising any document, book,
account, process, patent, specification, drawing, design or know-how
which.
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(a) comes to the notice of the Executive in the course
of the Executive's employment with Bluegum; or
(b) is generated by the Executive in the course of
performing the Executive's duties and obligations
to Bluegum.
CONFIDENTIAL PROPERTY means any copyright, industrial or intellectual
property rights in any and all works, designs, computer programs,
inventions, processes, concepts, strategies, plans or any other
financial or literary work which the Executive (either solely or jointly
with others):
(a) has created, discovered, conceived, written or
produced during his employment with Bluegum; and
(b) may create, discover, conceive, write or produce
during or as a result of, or in relation to, his
employment with Bluegum.
CONTROL includes the possession directly or indirectly of the power,
whether or not having statutory, legal or equitable rights, directly or
indirectly to control the membership of the Board or to otherwise
directly or indirectly direct or cause the direction of the management
and policies of Bluegum whether by means of trusts, agreements,
arrangements, understandings, practices, the ownership of any interest
in shares or stock of Bluegum or otherwise.
EFFECTIVE DATE means 6 October 1998 being the date when GGEP provided
funding to Bluegum in accordance with the Subscription Agreement.
EMPLOYMENT RESTRICTIONS means those restrictions agreed to by the
Executive under clause 14.
EXECUTIVE OPTION PLAN means the plan to be established by the Board to
issue options to the executives of Bluegum in the future.
EXECUTIVE SERVICES CONTRACT means the letter from Bluegum to the
Executive dated 10 February 1998 offering the terms and conditions of
employment of the Executive by Bluegum and duly signed by the Executive.
GENERAL MANAGER means the general manager of Bluegum from time to time.
GGEP means collectively Gilbert Global Equity Partners, L.P. of 785
Smith Ridge Road, New Canaan, Connecticut, USA and Gilbert Global Equity
Partners (Bermuda), L.P. of c/Hemisphere Management Company, Hemisphere
House, Church Street, Hamilton, Bermuda.
GROUP means all subsidiaries and controlled entities, and any holding
companies of Bluegum.
IBM means Information Business Machines Australia Limited of 55 Coonara
Avenue, West Pennant Hills, New South Wales.
LIQUIDITY EVENT means either:
(a) the closing of an initial public offering of
Ordinary Shares of Bluegum listed on the Australian
Stock Exchange or any other stock exchange in the
world; or
(b) a trade sale of Bluegum as described in clause 4.4
of the Shareholders Agreement; or
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(c) a sale of substantially all of the undertaking and
assets of Bluegum; or
(d) a similar event resulting in a change of Control of
Bluegum.
MANAGEMENT TEAM means William Kinnane, John Hughes, Barry Sullivan and
the Executive.
OPTIONS means the options granted to the Executive in accordance with
the Executive Services Contract.
ORDINARY SHARE means a fully paid ordinary share in Bluegum.
SHAREHOLDERS AGREEMENT means the agreement dated 10 February 1998
between A&B Venture Fund Company Pty Limited, Allbright Limited,
Beauport Limited, Cascade Capital Corporation, Citadel Pooled
Development Limited, Pinefilm Pty Limited, George Foster, Greystone
Bluegum Acquisition LLC, LUCRF Pty Limited, Tambaro Consolidated Pty
Limited and Bluegum.
SICKNESS AND ACCIDENT PLAN means the sickness and accident plan
established by IBM applicable to the Executive when the Executive was
employed by IBM at the time just prior to cessation of the Executive's
employment by IBM.
SUBSCRIPTION AGREEMENT means the agreement between GGEP and Bluegum
dated 20 September 1998.
SUPERANNUATION FUND means the superannuation fund otherwise known as the
Prudential Super Retirement Fund which is managed in accordance with
Prudential Superannuation Master Trust Deed dated 27 June 1997 (with
Prudential Australian Superannuation Limited as the trustee).
TERM means the period commencing from the date of this agreement until
termination of the agreement in accordance with clause 15.
1.2 In this agreement unless the contrary intention appears:
(a) a reference to a clause, schedule, annexure or
appendix is a reference to a clause of or schedule,
annexure or appendix to this agreement and
references to this agreement include any recital,
schedule, annexure or appendix;
(b) a reference to this agreement or another instrument
includes any variation or replacement of either of
them;
(c) a reference to a statute, ordinance, code or other
law includes regulations and other instruments
under it and consolidations, amendments,
re-enactments or replacements of any of them;
(d) the singular includes the plural and vice versa;
(e) the word person includes a firm, a body corporate,
an unincorporated association or an authority;
(f) a reference to a person includes a reference to the
person's executors, administrators, successors,
substitutes (including, but not limited to, persons
taking by novation) and assigns;
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(g) an agreement, representation or warranty in favour
of two or more persons is for the benefit of them
jointly and severally;
(h) an agreement, representation or warranty on the
part of two or more persons binds them jointly and
severally;
(i) if a period of time is specified and dates from a
given day or the day of an act or event, it is to
be calculated exclusive of that day;
(j) a reference to a day is to be interpreted as the
period of time commencing at midnight and ending 24
hours later;
(k) a reference to a time or a date is a reference to
that time or date according to Australian Eastern
Standard Time; and
(l) a reference to a monetary amount is a reference to
that amount in lawful Australian currency.
1.3 Headings are inserted for convenience and do not affect
the interpretation of this agreement.
2 TERMINATION OF EXECUTIVE SERVICES CONTRACT
2.1 The parties agree that the Executive Services Contract is
terminated on the Effective Date.
2.2 The Executive agrees that all rights of the Executive
under the Executive Services Contract, including the right
to compensation, expired on the Effective Date.
3 TERM
The appointment of the Executive commences on the Effective Date and
will continue until the Executive's employment is terminated in
accordance with clause 15 of this agreement.
4 APPOINTMENT
4.1 Bluegum appoints the Executive as Manufacturing Director
and the Executive accepts that appointment.
4.2 The Executive agrees to:
(a) devote the whole of his time and attention and
skill during normal business hours, and at such
other times as is reasonably necessary, to the
duties of his office;
(b) faithfully and diligently perform the duties of,
and exercise the powers consistent with, the office
to which he is appointed as may from time to time
be assigned to or vested in the Executive by the
Board; and
(c) promote the interests of Bluegum and the Group.
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4.3 The Executive will report directly to the General Manager
and must provide prompt and full information on the
conduct of the business or affairs of Bluegum and the
Group.
4.4 The Executive must comply with the reasonable directions
given by the General Manager and the Chief Executive
Officer.
5 REMUNERATION
5.1 From the Effective Date, the Executive will be remunerated
at the rate of $_________ per annum ("PACKAGE").
5.2 The Package remuneration will be made available in the
combination of cash salary, provision of motor vehicle,
provision of superannuation contributions and provision of
other non-cash benefits agreed between Bluegum and the
Executive from time to time.
5.3 The Package will be reviewed by the Board annually, taking
into account the efforts and performance of the Executive
in relation to the earnings before interest and taxation
of Bluegum for the end of each calendar year period,
compared to the previous calendar year period.
Additionally, from time to time, the Board may at its
discretion review the Package in light of the Executive's
performance.
5.4 For each calendar year, the Chief Executive Officer of
Bluegum at his discretion may make an annual incentive
payment to the Executive. The availability and amount of
any such incentive payment will be entirely a decision of
the Chief Executive Officer in accordance with Bluegum's
Business Plan and in light of performance reviews of the
Executive.
5.5 Any fringe benefits tax or other similar tax or other
charges incurred by Bluegum in providing any component of
the Package will be deducted from the total Package
payable to the Executive.
5.6 Bluegum will reimburse the Executive for all reasonable
out-of-pocket expenses incurred by the Executive on the
business of Bluegum which expenses must be evidenced in
the manner Bluegum reasonably requires before payment.
Bluegum will, at its own cost, purchase directors' and
officers' liability insurance for the Executive. Any
associated fringe benefits tax or other taxes for which
Bluegum becomes liable in relation to benefits paid or
payments made under this clause 5.6 will not form part of
the Package.
6 SUPERANNUATION
6.1 Bluegum must make contributions with respect to the
Executive to the Superannuation Fund or to a fund
nominated by the Executive in accordance with the minimum
contributions required by law and the terms of the fund.
6.2 A superannuation contribution made for the benefit of the
Executive under this agreement must not in any
circumstances exceed the amount of contributions which
when contributed to the relevant fund
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secures the benefits which fall within the limitations
referred to in section 237(6) of the Corporations Law.
7 LONG TERM COMPENSATION INCENTIVE
7.1 The Executive is entitled to subscribe for a number of
Ordinary Shares in Bluegum as determined by the Board from
time to time and subject to shareholders' approval under
the terms of the Shareholders Agreement.
7.2 The parties agree that the Options expired on the
Effective Date.
7.3 In consideration of payment of the sum of $_____ by the
Executive (receipt of which is acknowledged), Bluegum
grants the Executive _______ Bluegum Options to purchase
Ordinary Shares in Bluegum with each Bluegum Option having
an exercise price of $_____ per Ordinary Share,
exercisable:
(a) in three equal parcels as follows:
(i) ______ Bluegum Options exercisable from the
date of this agreement;
(ii) ______ Bluegum Options exercisable from the
first anniversary date of this agreement;
and
(iii) ______ Bluegum Options exercisable from the
second anniversary date of this agreement;
or
(b) in total on a Liquidity Event of Bluegum.
7.4 If the Executive wishes to exercise the Bluegum Options,
the Executive must give Bluegum a written notice stating:
(a) the number of Bluegum Options to be exercised; and
(b) the date nominated for the exercise of the Bluegum
Options, such date being at least seven days after
the date written notice is provided by the
Executive to Bluegum under this clause 7.4.
7.5 On the exercise of a Bluegum Option, the Executive must
pay to Bluegum the total exercise price for the number of
Bluegum Options being exercised in accordance with clause
7.4, against delivery of the share certificates for the
relevant number of Ordinary Shares issued upon exercise of
the Bluegum Options.
7.6 Bluegum undertakes to use its best endeavours to procure
the issue to the Executive of:
(a) ________ options; and
(b) a number of options out of a pool of 95,000 options
to be determined by the Board in light of the
Executive's performance for calendar year 1998,
to purchase ordinary shares in a holding company of Bluegum established
in Singapore following completion of the proposed restructuring of
Bluegum. The terms and conditions
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of any future options granted under this clause 7.6 will be determined
at the discretion of the board of the relevant holding company of
Bluegum in light of Performance Reviews of the Executive prior to the
issue of such options.
7.7 For each future calendar year, Bluegum will grant further
options to the Executive in accordance with the Executive
Option Plan.
8 RELOCATION
8.1 The Executive agrees that Bluegum, may, at its discretion,
relocate the Executive within Australia provided that:
(a) Bluegum compensates the Executive for all
reasonable increases in the cost of living in the
relocated position; and
(b) Bluegum reimburses the Executive for reasonable
costs incurred in connection with relocating the
Executive and his spouse and children; and
(c) the Executive's total annual compensation in the
relocated position is equivalent to, or greater
than, that specified in the Package.
9 LEAVE
9.1 The Executive will be entitled, in addition to normal
public holidays, to four weeks paid annual leave in
respect of each completed year of service at a period or
periods to be agreed by Bluegum and the Executive.
9.2 Bluegum may require the Executive to take any significant
accrued but untaken annual leave entitlement at any time
or times directed by Bluegum.
9.3 The Executive is entitled to long service leave in
conformity with relevant statutory entitlements. Any long
service leave entitlement of the Executive for years of
service with IBM is accrued for the purposes of the
Executive's employment by Bluegum and the period for long
service leave for Bluegum is deemed to include years of
service with IBM.
10 PAYMENT DURING ABSENCE ON MEDICAL GROUNDS
10.1 Bluegum will continue to pay the Executive's Package
during any period of absence on medical grounds in full
for up to a maximum of 52 weeks in any period of 24 months
in accordance with the terms of the Sickness and Accident
Plan.
10.2 The Executive must, if Bluegum so requires:
(a) provide evidence to the reasonable satisfaction of
Bluegum that any absence from Bluegum was due to
illness or involuntary injury and
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(b) comply with medical examination and information
requests from Bluegum and Bluegum's insurers in
relation to any illness or injury causing absence
from Bluegum.
11 CONFIDENTIAL PROPERTY
11.1 All Confidential Property of the Executive will be
disclosed in writing promptly to Bluegum.
11.2 Subject to clause 11.3, in consideration of the payment by
Bluegum of a sum of $10.00 (receipt of which is hereby
acknowledged) the Executive assigns all his right, title
and interest in all proprietary or ownership rights
(including copyright) in the Confidential Property of the
Executive to Bluegum absolutely. The Executive agrees to
execute any documents and do everything else necessary or
appropriate to effect an assignment to Bluegum under this
clause 11.2.
11.3 Bluegum acknowledges that the Executive may not be able to
assign all right, title and interest in proprietary or
ownership rights (including copyright) in the Confidential
Property because of a prior agreement. The Executive must
disclose any such prior agreements to Bluegum on the date
of entering into this agreement.
11.4 The Executive acknowledges and agrees:
(a) that as a result of the assignments to Bluegum
pursuant to clause 11.2, all proprietary and
ownership rights including copyright in the
Confidential Property assigned to Bluegum under
clause 11.2 are the absolute property of Bluegum;
(b) that the Confidential Property assigned to Bluegum
pursuant to clause 11.2 may only be copied or used
as permitted by Bluegum;
(c) to co-operate with Bluegum and its legal advisers
in the preparation of any applications for
registration or otherwise in respect of any
Confidential Property assigned to Bluegum under
clause 11.2; and
(d) that the decision to file for patent or copyright
protection in respect of, or to maintain as a trade
secret, any Confidential Property assigned to
Bluegum under clause 11.2, will be in the sole
discretion of Bluegum, and the Executive will be
bound by such decision.
11.5 The Executive's obligations under this clause 11 survive
the termination of this agreement.
12 SECRECY
12.1 The Executive must:
(a) keep any Confidential Information secret and
confidential, except to the extent that the
Executive is required by law to disclose it:
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(b) take all reasonable and necessary precautions to
maintain the secrecy and prevent the disclosure of
any Confidential Information, and
(c) not disclose Confidential Information to any third
party without first obtaining the written consent
of the Board except in the ordinary and proper
course of employment with Bluegum.
12.2 The Executive must not (except in the proper course of his
duties), divulge to any person or use for any purpose
other than those of Bluegum, and must use his best
endeavours to prevent the disclosure of any Confidential
Information concerning the business or finances of Bluegum
including but not limited to:
(a) any information relating to the business, methods,
processes, techniques, products, engineering,
programming or research of Bluegum;
(b) any information about the financial results of
Bluegum or the financial results of the Group, or
any information which would enable the
determination of such financial results;
(c) all proprietary and technical information of
Bluegum, including the Confidential Property
assigned to Bluegum under this agreement and other
computer techniques, programs, services, systems
and inventions of Bluegum; and
(d) lists of Bluegum's current or potential customers,
prospective lead or target accounts, the identity
of various suppliers of products or services,
pricing schedules, computer programming needs of
its customers, information as to the profitability
of specific accounts, and information about Bluegum
itself and its executives, officers, directors and
employees,
or of any of the dealings, transactions or affairs which may come to his
knowledge during or in the course of his employment, other than
information which is freely available to the public, and except to the
extent that he is required to disclose that information by law.
12.3 The Executive's obligations under this clause 12 survive
the termination of this agreement.
12.4 Nothing in this clause is to be taken as limiting the
Executive's duty to Bluegum and the Group.
13 RESTRICTIONS ON OTHER ACTIVITIES OF THE EXECUTIVE
13.1 For so long as the Executive is in the employment of
Bluegum, he must avoid conflicts of interest in relation
to Bluegum and must not engage in any activities or
advance any personal interests, at the expense of
Bluegum's interests including but not limited to:
(a) assisting a competitor;
(b) supplying or assisting a supplier to Bluegum;
(c) using Bluegum's time and assets for non-Bluegum
work; or
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(d) having a financial interest in an organisation with
which Bluegum does business or competes,
without the prior written consent of Bluegum.
14 EMPLOYMENT RESTRICTIONS
14.1 The Executive undertakes to Bluegum that he will not
without the previous written consent of Bluegum:
(a) from the date of termination of employment under
this agreement ("TERMINATION DATE") for the period
specified in clause 14.1(a)(ii) either directly or
indirectly in any capacity (including as principal,
agent, partner, employee, shareholder, unitholder,
director, trustee, beneficiary, manager,
consultant, adviser or financier) provide services
to, be engaged with, or be concerned in any entity
engaged in:
(i)
(A) the business of contract
manufacturing of electronic hardware
for the information technology and
telecommunications industries; or
(B) the business of contract
manufacturing of electronic hardware
for the information technology,
telecommunications, defence,
aerospace, medical, industrial and
automotive industries;
(ii)
(A) for a period of 2 years; or
(B) for a period of 18 months; or
(C) for a period of 1 year;
(iii)
(A) in Australia and New Zealand; or
(B) in Australia; or
(C) in Victoria and New South Wales.
14.2 Clause 14.1(a) has effect as if it were the number of
separate clauses which results from combining the
commencement of clause 14.1(a) with each paragraph of
clause 14.1(a)(i) and combining each such combination with
each paragraph of clause 14.1(a)(ii) and combining each
such combination with each paragraph of clause
14.1(a)(iii), each such resulting clause being severable
from each other resulting clause, and if any of those
separate resulting clauses is invalid or unenforceable for
any reason, that invalidity or enforceability does not
prejudice or in any way affect the validity or
enforceability of any other resulting clause. If the
combination of clauses, then taken together is judged to
go beyond what is reasonable in the circumstances and
necessary to protect the goodwill of Bluegum, but
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would be judged reasonable and necessary if part were
deleted, then the clauses are to be construed as if that
part were deleted.
14.3 The Executive acknowledges, that having regard to his
duties with Bluegum, that he has or will become possessed
of secret and confidential knowledge and information
relating to the trade secrets, industrial process and
other information concerning the business or finances of
Bluegum and the Group and that disclosure of such
knowledge and information could materially harm Bluegum
and the Group and therefore agrees that the restrictive
covenants contained in this clause 14 are reasonable and
necessary for the protection of the goodwill of Bluegum
and the Group.
15 TERMINATION
15.1 This agreement may be terminated at any time after 20
February 2002 by Bluegum provided Bluegum after that date,
gives the Executive at least three months' prior notice in
writing. If notice is given under this clause 15.1, this
agreement terminates on the expiration of the notice
period given to the Executive. On termination under this
clause 15.1, the Executive agrees that he will have no
right to further compensation other than:
(a) any accrued amount of the Package to which the
Executive is entitled on the date of termination;
(b) any amount to which the Executive is entitled in
lieu of unused annual leave; and
(c) any amount to which the Executive is entitled in
relation to long service leave.
15.2 If the Executive:
(a) commits any serious or persistent breach of this
agreement including, without limitation,
intentional disobedience, dishonesty, serious or
persistent breach of duty, or serious or persistent
neglect;
(b) materially breaches this agreement and does not
remedy that breach within two days of receiving
notice from Bluegum specifying the breach;
(c) is declared bankrupt or enters into any composition
or arrangement in favour of the Executive's
creditors; or
(d) is convicted of a criminal offence which, in the
opinion of Bluegum, may detrimentally affect
Bluegum,
then Bluegum may immediately terminate the employment of the Executive
under this agreement. In the event the Executive's employment is
terminated in accordance with this clause 15.2, the parties agree that
Bluegum's total obligation to pay compensation to the Executive is
limited to:
(e) any accrued amount of the Package to which the
Executive is entitled to on the date of
termination;
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(f) any amount to which the Executive is entitled in
lieu of unused annual leave; and
(g) any amount to which the Executive is entitled in
relation to long service leave.
15.3 If the Chief Executive Officer determines as a result of a
performance review that any of the Executive's duties or
obligations under this agreement are:
(a) being performed by the Executive in a manner
unsatisfactory to the Chief Executive Officer; or
(b) not being performed;
then the Chief Executive Officer or the Board may give the Executive a
notice to that effect and advise the Executive to resolve the act,
matter or thing within three months. If after three months from the
provision of such notice by the Board to the Executive, the Executive
has not improved his performance to the satisfaction of the Chief
Executive Officer and the Board, Bluegum may terminate the employment of
the Executive under this agreement. Upon termination of the employment
of the Executive under the clause 15.3, Bluegum will pay the Executive
six months of the amount of the Package.
15.4 If the Executive's employment is terminated otherwise than
as specified in this clause 15, the Executive will be
compensated the greater of:
(a) the amount of the Package payable to the Executive
as on the Termination Date if the Executive
continued to be employed by Bluegum from the
Termination Date to 20 February 2002; or
(b) the amount of the Package payable to the Executive
as on the Termination Date if the Executive
continued to be employed by Bluegum for a one year
period from the Termination Date
15.5 Any obligations of the Executive relating to Confidential
Information, Confidential Property and Employment
Restrictions will remain in full force and effect,
notwithstanding termination of this contract of
employment.
15.6 On termination of employment under this agreement for any
reason, the Executive must immediately deliver to Bluegum
all Confidential Information and Confidential Information
and all Bluegum products, books, documents, papers,
including but not limited to, customer correspondence,
internal memoranda, photocopies of products and designs,
sale brochures, price lists, customer lists, any customer
information, sales literature, notebooks, computer
training materials, textbooks and all copies,
duplications, replications and derivatives of such
materials and credit cards, motor cars and other property
of or relating to Bluegum or any related body corporate
which may then be in his possession or under his power or
control.
15.7 If this agreement is terminated under this clause 15, the
Executive must, at Bluegum's option and sole expense,
within 10 days of the first notice of termination execute
a Certificate of Conclusion of Employment in the form
provided by Bluegum certifying that the
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Executive has complied with his obligations and
acknowledging the Executive's continuing obligations under
clauses 11, 12, 14 and 16 of this agreement.
16 DIVESTMENT OF SHARES UPON CESSATION OF EMPLOYMENT
16.1 The Executive agrees that upon the cessation of his
employment by Bluegum, for whatever reason, that the
Executive will dispose of any shares the Executive holds
in Bluegum for fair market value at Bluegum's direction
and in accordance with this clause 16.
16.2 For the purpose of clause 16.1 and in the case of a
dispute between the Executive and Bluegum regarding fair
market value, fair market value will be determined by an
independent expert in accordance with clause 30 of the
Shareholders Agreement.
16.3 The members of the Management Team (excluding the
Executive) will have a first option to purchase any shares
disposed under clause 16.1, pro-rata to their existing
holdings of Ordinary Shares. If any shares to be disposed
of under clause 16.1 are not purchased by the Management
Team, then:
(a) all remaining investors in Bluegum will be entitled
to purchase the shares, pro rata to their holdings
in Bluegum;
(b) if all shares are not purchased under sub-clause
(a), then Bluegum will be entitled to buy-back any
remaining shares.
17 NOTICES
17.1 A notice, approval, consent or other communication in
connection with this agreement must be in writing, and
must be left at the address of the addressee, or sent by
prepaid ordinary post to that address or sent by facsimile
to the facsimile number of the addressee which is
specified in this clause or if the addressee notifies
another address or facsimile number then to that address
or facsimile number.
17.2 The address and facsimile number of each party is:
BLUEGUM
Attention:
Address:
Facsimile:
Address:
Facsimile:
17.3 A notice, approval, consent or other communication takes
effect from the time it is received unless a later time is
specified in it.
17.4 A letter or facsimile is taken to be received:
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(a) in the case of a posted letter, on the third
(seventh, if posted to or from a place outside
Australia) day after posting; and
(b) in the case of a facsimile, on production of a
transmission report by the machine from which the
facsimile was sent which indicates that the
facsimile was sent in its entirety to the facsimile
number of the recipient.
18 ENTIRE AGREEMENT
18.1 This agreement constitutes the entire agreement of the
parties about its subject matter and any previous
agreements, understandings and negotiations on that
subject matter cease to have any effect.
19 WAIVER
19.1 A provision of or a right created under this agreement may
not be:
(a) waived except in writing signed by the party
granting the waiver; or
(b) varied except in writing signed by the parties.
20 SEVERANCE
If the whole or any part of a provision of this agreement is void,
unenforceable or illegal in a jurisdiction it is severed for that
jurisdiction. The remainder of this agreement has full force and effect
and the validity or enforceability of that provision in any other
jurisdiction is not affected. This clause has not effect if the
severance alters the basic nature of this agreement or is contrary to
public policy.
21 GOVERNING LAW
21.1 This agreement and the transactions contemplated by this
agreement are governed by the law in force in Victoria.
21.2 Each party irrevocably and unconditionally submits to the
non-exclusive jurisdiction of the courts of Victoria and
courts of appeal from them for determining any dispute
concerning this agreement.
EXECUTED as an agreement
<PAGE> 17
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EXECUTION PAGE
SIGNED by )
for and on behalf of BLUEGUM GROUP )
PTY LIMITED in the presence of: )
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Occupation of witness
SIGNED by __________ in the )
presence of: )
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Signature of witness )
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Name of witness (block letters) )
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Occupation of witness ) Signature
