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EXHIBIT 10.4
EXECUTIVE SERVICES AGREEMENT
BETWEEN
CHIP APPLICATION TECHNOLOGIES LIMITED
AND
DAVID LANCELOT MACHATTIE SMITH
(1 JUNE 1999)
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TABLE OF CONTENTS
1 DEFINITIONS AND INTERPRETATION .................................. 4
1.1 DEFINITIONS ................................................... 4
2 EMPLOYMENT ...................................................... 5
3 TERM ............................................................ 5
4 DUTIES OF EXECUTIVE ............................................. 6
4.1 GENERAL DUTIES ................................................ 6
4.2 DUTY TO REPORT ................................................ 6
5 REMUNERATION .................................................... 6
5.1 BASIC SALARY PACKAGE .......................................... 6
5.2 STARTING SALARY PACKAGE ....................................... 6
5.3 SALARY PACKAGE REVIEW ......................................... 7
5.4 NO DECREASE IN BASIC SALARY PACKAGE ........................... 7
5.5 DIRECTORS' FEES ............................................... 7
6 SUPERANNUATION .................................................. 8
7 EXISTING LOAN SHARE AGREEMENT AMENDMENTS ........................ 8
8 EXPENSES AND OTHER ENTITLEMENTS ................................. 8
8.1 EXPENSES ...................................................... 8
8.2 ENTITLEMENTS .................................................. 9
8.3 FRINGE BENEFITS TAX ........................................... 9
9 MAINTENANCE OF REMUNERATION ..................................... 9
10 LEAVE ENTITLEMENTS .............................................. 10
11 PAYMENT DURING ABSENCE ON MEDICAL GROUNDS ....................... 10
12 CONFIDENTIALITY ................................................. 10
12.1 EXECUTIVE'S OBLIGATIONS ..................................... 11
12.2 SURVIVAL OF OBLIGATIONS ..................................... 11
13 RESTRICTIONS ON OTHER ACTIVITIES OF THE EXECUTIVE ............... 11
13.1 INDUCEMENTS ................................................. 11
13.2 OPTIONAL POST-EMPLOYMENT RESTRAINT .......................... 11
13.3 USE OF THE COMPANY NAME ..................................... 12
14 TERMINATION ..................................................... 12
14.1 TERMINATION BY THE EXECUTIVE ................................ 12
14.2 TERMINATION BECAUSE OF INCAPACITY ........................... 13
14.3 IMMEDIATE TERMINATION BY THE COMPANY ........................ 13
14.4 TERMINATION BY THE COMPANY .................................. 13
14.5 PAYMENTS ON TERMINATION OR FAILURE TO RENEW AGREEMENT ....... 13
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14.6 TERMINATION PAYMENTS ........................................ 14
14.7 RESIGNATION AS DIRECTOR ..................................... 14
14.8 OBLIGATIONS ON TERMINATION .................................. 14
15 SHARES AND OPTIONS 14
15.1 CONFIRMATION ................................................ 14
15.2 CONFIRMATION OF SHARES SUBJECT TO LIMITED RECOURSE LOANS .... 14
15.3 LIMITED RECOURSE LOAN TERMS ................................. 14
15.4 NEW OPTIONS ................................................. 15
16 INDEMNITY ....................................................... 15
17 GENERAL ......................................................... 15
17.1 NOTICES ..................................................... 15
17.2 GOVERNING LAW AND JURISDICTION .............................. 16
17.3 PROHIBITION, ENFORCEABILITY AND SEVERANCE ................... 16
17.4 WAIVER ...................................................... 16
17.5 ENTIRE AGREEMENT ............................................ 16
13. TAXATION ...................................................... 22
14. UNEXERCISED OPTIONS ........................................... 22
15. CHANGE OF CONTROL ............................................. 23
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THIS EXECUTIVE SERVICE AGREEMENT is made on 1 June 1999 between the following
parties:
CHIP APPLICATION TECHNOLOGIES LIMITED (ACN 057 883 333) of Level 5, 152-162
Riley Street, East Sydney, New South Wales ('COMPANY'), AND
DAVID LANCELOT MACHATTIE SMITH of 58 View Street, Woollahra, New South Wales
2025 ('EXECUTIVE').
RECITALS
A. The Company is in the business of developing, marketing and operating
software solutions for multi-application systems over POS and Internet.
(the 'BUSINESS').
B. The Company and the Executive entered into an Employment Agreement dated
1 May 1995 (`Employment Agreement') and Executive Services Agreement dated
14 May 1997 (`Executive Agreement') under which the Executive has been
employed as the Managing Director of the Company (the 'PREVIOUS
AGREEMENTS').
C. The Company and the Executive have agreed to enter into this Agreement
to replace the Previous Agreements and to clarify the terms and
conditions of the Executive's continued employment as Managing Director
and CEO of the Company.
THE PARTIES AGREE, in consideration of, among other things, the mutual promises
contained in this agreement:
1 DEFINITIONS AND INTERPRETATION
1.1 DEFINITIONS
In this agreement:
'BOARD' means the board of directors of the Company,
'GROUP' means the Company and any Group Company;
'GROUP COMPANY' means a 'related body corporate' of the Company as that
expression is defined in the Corporations Law;
'INFORMATION' means any information in respect of the Company's Business
which is not in the public domain and includes, but is not limited to,
any document, book, account, process, patent, specification, drawing,
design or know-how which is:
(a) supplied by the Company to the Executive; or
(b) generated by the Executive in the course of performing the
Executive's obligations;
'MONTH' means calendar month;
'SALARY REVIEW DATE' means 1 May of each year that this Agreement is in
effect;
'SUBSIDIARY' means any 'subsidiary' of the Company as that expression is
defined in the Corporations Law,.
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1.2 INTERPRETATION
In this agreement, headings are for convenience only and do not affect
the interpretation of this agreement and, unless the context otherwise
requires:
(a) a reference to termination of this agreement includes a
reference to termination of the Executive's contract of
employment;
(b) words importing the singular include the plural and vice versa;
(c) words importing a gender include any gender;
(d) other parts of speech and grammatical forms of a word or phrase
defined in this agreement have a corresponding meaning;
(e) an expression importing a natural person includes any company,
partnership, joint venture, association, corporation or other
body corporate and vice versa;
(f) a reference to any thing (including, but not limited to, any
right) includes a part of that thing;
(g) a reference to a party to a document includes that party's
successors and permitted assigns;
(h) a reference to a statute, regulation, proclamation, ordinance or
by-law includes all statutes, regulations, proclamations,
ordinances or by-laws varying, consolidating or replacing it,
and a reference to a statute includes all regulations,
proclamations, ordinances and by-laws issued under that statute;
and
(i) a reference to a document or agreement includes all amendments
or supplements to, or replacements or novations of, that
document or agreement.
2 EMPLOYMENT
(a) Under the Previous Agreements the Company appointed the
Executive as its Managing Director and the Executive accepted
that appointment with effect from 1 May 1995 (the 'Commencement
Date').
(b) The Executive continues to be employed as the Managing Director
and CEO of the Company and from the date of this Agreement that
employment is on the terms contained in this Agreement.
3 TERM
(a) The appointment of the Executive as CEO & Managing Director of
the Company began on the Commencement Date under the terms of
the Previous Agreements.
(b) The appointment of the Executive as Managing Director and CEO of
the Company will continue until 1 June 2002, unless terminated
at some earlier time in accordance with the terms of this
Agreement.
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4 DUTIES OF EXECUTIVE
4.1 GENERAL DUTIES
The Executive must:
(a) devote the whole of the Executive's time, attention and skill
during normal business hours, and at other times as reasonably
necessary, to the duties of office and the Executive shall not
be entitled to receive any remuneration for work performed
outside such normal business hours;
(b) faithfully and diligently perform the duties and exercise the
powers:
(i) consistent with the position of Managing Director and
CEO; and
(ii) assigned to the Executive by the Board; and
(c) promote the interests of the Company and any Group Company.
4.2 DUTY TO REPORT
The Executive must:
(a) report directly to the Board or as directed by the Board;
(b) provide prompt and full information to the Board regarding the
conduct of the business of the Company by the Executive; and
(c) comply with reasonable directions given to the Executive by the
Board.
5 REMUNERATION
5.1 BASIC SALARY PACKAGE
(a) During the period that the Executive serves the Company under
this Agreement, the Company must pay the Executive a basic
salary package, determined under this clause, the salary
component of which is payable fortnightly in arrears by direct
deposit into a bank account nominated by the Executive, or as
otherwise agreed between the parties.
(b) At the sole discretion of the Executive as to the nature and
amount of each component, payment by the Company of the basic
salary package may be by way of salary, additional
superannuation contributions, life insurance, health and
incapacity insurance, income protection insurance or such other
components as may otherwise be agreed between the parties. Any
fringe benefits tax payable under the Fringe Benefits Tax
Assessment Act 1986 (Cth) in respect of the nature of each
component will be included in the calculation of the basic
salary package.
5.2 STARTING SALARY PACKAGE
The basic salary package for the period commencing on the date of this
Agreement is $286,624.00 gross per annum.
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5.3 SALARY PACKAGE REVIEW
(a) The basic salary package is subject to review on each Salary
Review Date.
(b) The basic salary package for the period after a review is the
amount per annum agreed between the parties.
(c) At each review, the basic salary package may be increased having
regard to:
(i) the cost of living;
(ii) the responsibilities of the Executive and remuneration
available in the workforce outside the Company for a
person with responsibilities and experience equivalent
to those of the Executive;
(iii) the performance of the Executive;
(iv) the performance of the Company; and
(v) any increases awarded to employees of the Company.
(d) In the absence of agreement under clause 3.3(b), the basic
salary package for the period after a Salary Review Date will be
the greater of.
(i) an amount equal to any percentage increase in the All
Groups Consumer Price Index ('CPI') for Sydney as
published by the Australian Bureau of Statistics; or
(ii) the average increase granted across the Company's
employees, in respect of the 12-month period preceding
the Salary Review Date.
(e) The parties must commence review of the basic salary package 1
month before the Salary Review Date, with a view to the parties
reaching an agreement for the purposes of clause 3.3(b), by the
Salary Review Date.
5.4 NO DECREASE IN BASIC SALARY PACKAGE
The basic salary package of the Executive must not decrease on any
salary package review.
5.5 DIRECTORS' FEES
The basic salary package includes directors' fees. In the event this
Agreement is terminated for whatever reason and the Executive remains as
a director of the Company, then director's fees shall be payable to the
Executive on a similar basis to other non-executive directors (other
than the Chairman).
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6 SUPERANNUATION
(a) The Company warrants that as at the date of this Agreement the
Company has fully complied with its obligations under the
Superannuation Guarantee Charge Legislation in relation to the
employment of the Executive since 1 May 1995.
(b) The Company must, during the continuation of this Agreement,
ensure that the minimum superannuation contributions required to
be made for the benefit of the Executive by the Superannuation
Guarantee Charge Legislation are made to the trustees of a
complying superannuation fund (within the meaning of the Income
Tax Assessment Act 1936 (Cth)).
(c) The Company's superannuation contributions under this clause 4
form part of the Executive's basic salary package under clause 3
of this Agreement, except that any increases after the date of
this Agreement to the minimum superannuation contribution
required to be made for the benefit of the Executive pursuant to
the Superannuation Guarantee Charge Legislation as at the date
of this Agreement will be paid by the Company in addition to,
and will not form part of, the Executive's basic salary package
under clause 3 of this Agreement. In addition the Executive will
be compensated (by way of increased basic salary or otherwise)
by the Company for any negative financial impact of any other
amendments to prevailing superannuation legislation.
7 EXISTING LOAN SHARE AGREEMENT AMENDMENTS
(a) The Executive agrees to waive the obligation of the Company to buy-back
shares up to a maximum one million dollars.
(b) The Company agrees that the Executive may transfer Loan Shares to
members of the Executives family or entities controlled by one or more
members of the Executive's family, and not necessarily the Executive,
without any obligation to repay the Loan related to such shares. However
on sale, transfer or any disposal of such shares to any third party or
any third party assuming control of such entity, the Executive will
repay the Loan applicable to such shares.
8 EXPENSES AND OTHER ENTITLEMENTS
8.1 EXPENSES
(a) The Company must reimburse the Executive for all reasonable work related
out-of-pocket expenses (approved by the Chairman or another director)
incurred by the Executive on Company Business, including but not limited
to:
- telephone calls, rentals and charges; home facsimile charges;
internet expenses, travelling expenses; entertainment expenses;
hotel expenses;
- car parking expenses;
- expenses associated with the use of the Executive's own car,
calculated at the rates allowed by the Australian Taxation
Office for the purposes of determining deductibility; and
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- any other expenditure reasonably made by the Executive on behalf
of the Company.
(b) No amount may be reimbursed pursuant to clause 6.1 before the Executive
has provided written evidence of expenses incurred to the Company.
(c) The Executive will be entitled to full reimbursement of all overseas
travel (business class), accommodation and other costs for the
Executive's wife on two trips with the Executive (each trip not to
exceed 30 days) at any time prior to 1 June 2002, notwithstanding the
early termination of the agreement for whatever reason.
8.2 ENTITLEMENTS
(a) In addition to the payments under clause 3, 4, 5 and this clause 6, the
Company agrees to provide the Executive the following benefits:
- the Company will provide the Executive with a portable computer,
facsimile, mobile telephone and an internet service for use at
home or out of the office;
- the Company will provide the Executive with car parking at or
near the Company's premises;
- the Company will ensure that all overseas travel is at least
business class
- for the duration of his employment by the Company, the Company
will ensure that the Executive is covered by workers
compensation insurance as required by legislation and directors'
and officers' liability insurance world-wide; and
- the Company will pay all of the costs associated with the
parties entering into this Agreement, including payment of stamp
duty and up to $6,000 of the Executive's legal costs.
(b) In relation to the benefits at clauses 8.2(a) the Company will pay all
leasing and other costs associated therewith. In the event that the
Executive pays for any part of the costs associated with these benefits
the Company will reimburse the Executive for such amounts.
(c) In relation to the benefits at clause 8.2(a), on termination of this
Agreement for whatever reason the Executive may at his sole discretion
purchase such items from the Company at the depreciated value of the
items at the time of termination.
8.3 FRINGE BENEFITS TAX
The Company must pay any fringe benefits tax payable under the Fringe Benefits
Tax Assessment Act 1986 (Cth) in relation to any remuneration or benefit
provided by the Company to the Executive under this Agreement except as
specifically referred to in Clause 5.1 (b).
9 MAINTENANCE OF REMUNERATION
If there is any change in:
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(a) the corporate structure under which the Company or any Group Company
operates the Business;
(b) the accounting methods of the Company or its accountants or auditors,
which reduces or diminishes the total value of the remuneration payable to the
Executive, the Company must ensure that the total value of the remuneration
payable to the Executive is maintained at a level not less than that which
existed before the change.
10 LEAVE ENTITLEMENTS
(a) The Executive is entitled to public holidays, long service leave and
annual leave in conformity with statutory entitlements. The parties
agree that annual leave and long service leave shall be taken at such
time as is agreed by the parties provided that it does not unreasonably
inconvenience or disrupt the Business or the Company. In addition to
normal leave the Executive will be entitled to 1.5 days of special
holiday leave for each overseas trip exceeding 21 days with a maximum
entitlement of 5 days of special leave for each 100 days overseas.
(b) The Company acknowledges that, at the date of this agreement, the
Executive is currently entitled to 38 working days holiday as part of
annual leave and that the Executive is entitled to long service leave of
24 working days. If upon termination of the agreement for whatever
reason, the Executive is entitled to annual leave or long service leave,
the Company will pay the Executive the full entitlement upon such
termination.
11 PAYMENT DURING ABSENCE ON MEDICAL GROUNDS
(a) Where the Executive is at any time incapacitated from performing his
duties for a period in excess of six months, where such incapacity is
due to illness, injury, accident or any other circumstance, the Company
may discontinue payment in whole or in part of the Executive's salary
until such time as the incapacity shall cease or the Executive's
employment is terminated in accordance with the terms of this Agreement.
(b) The Company shall give written notice to the Executive of its intention
to discontinue payment of salary and the notice shall specify the date
from which payment of salary will be discontinued. The notice may be
given at any time after the expiration of six months, so long as the
incapacity remains.
(c) The Executive shall be entitled to no more than six months' sick leave
in total throughout the term of this Agreement and the Company must
continue to pay the Executive's salary in full during this period.
(d) The Executive shall undertake such medical checks and blood tests as may
be reasonably required to enable the Company to obtain Key Man insurance
or other insurance coverage over the life of the Executive.
12 CONFIDENTIALITY
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12.1 EXECUTIVE'S OBLIGATIONS
The Executive must:
(a) keep any Information secret and confidential,
(b) take all reasonable and necessary precautions to maintain the secrecy
and prevent the disclosure of any Information; and
(c) not disclose Information to any third party without first obtaining the
written consent of the Board except, provided however that these
obligations do not to apply to Information:
(d) that is in the public domain other than through breach of this
Agreement;
(e) that the Executive is required by law to disclose;
(f) that is required to be disclosed by the Executive in the ordinary and
proper course of employment with the Company; or
(g) that has been disclosed to the Executive by a third party who is not
under any duty of confidentiality with respect to that Information.
12.2 SURVIVAL OF OBLIGATIONS
The Executive's obligations under this part survive the termination of the
Executive's employment with the Company.
13 RESTRICTIONS ON OTHER ACTIVITIES OF THE EXECUTIVE
13.1 INDUCEMENTS
Other than under this agreement the Executive must not accept any payment or
other benefit as an inducement or reward for any act in connection with the
Business of the Company or any Group Company.
13.2 OPTIONAL POST-EMPLOYMENT RESTRAINT
(a) The Executive and the Company agree that notwithstanding termination of
this agreement for whatever reason, the Company may, at its option, pay
the Executive an additional one year's basic salary package as per
clause 5.1 of this Agreement in consideration for the Executive agreeing
to the post-employment restraints in clause 13.2(d) of this Agreement.
(b) The Executive may elect to have the amount payable under clause 13.2(a)
paid monthly or in a lump sum on exercise of the option. If a lump sum
is elected, the lump sum shall be discounted by the Discount Rate. For
the purposes of this paragraph, the Discount Rate shall be equal to the
Bank Bill Interest Rate at the date of termination, plus three
percentage points.
(c) The total amount referred to in clause 13.2(a) is payable in addition to
any other payment to the Executive under this Agreement.
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(d) On exercise of the option by the Company, the Executive agrees that for
a period of 12 months from either:
(i) the expiry of the term of this Agreement; or
(ii) the date of termination (for any cause or by any means) of his
employment with the Company, whichever is the first to occur,
the Executive will not undertake or carry on (either alone or in
partnership) or be employed or interested, whether directly or
indirectly, in any capacity whatsoever, in the Restraint Area,
in a business which is the same as or substantially similar to
the Business or competes with the Company or the Business.
(e) In clause 13.2(d), 'Restraint Area' means:
(i) all countries in which the Company, or any related body
corporate of the Company, carry on business;
(ii) Australia;
(iii) New South Wales.
(f) Clause 13.2(d) has the effect of several separate and individual
covenants and restraints consisting of each separate covenant and
restraint set out in clause 13.2(d) combined with each separate area set
out in clause 13.2(e).
(g) If any of the several separate and independent covenants and restraints
referred to in clause 13.2(f) are or become invalid or unenforceable for
any reason, then that invalidity or unenforceability will not effect the
validity of enforceability of any of the other separate and independent
covenants and restraints.
13.3 USE OF THE COMPANY NAME
The Executive agrees with the Company that at any time after termination (for
any cause or by any means) of his employment with the Company, he will not use
the name of the Company or any Group Company for any purpose, in connection with
his own or any other name, in any way which might suggest his continued
association with the Company or any Group Company (other than as a shareholder
or director of the Company, if he continues so to be).
14 TERMINATION
14.1 TERMINATION BY THE EXECUTIVE
This Agreement may be terminated by the Executive at any time by the Executive
giving six months' notice in writing to the Company. If any one entity or
person, acting alone or in association with others,
a) lodges with the Company, or any parent of the Company, a substantial
shareholders notice indicating an interest or
b) in any way obtains an interest in
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more than 30% of the issued capital of the Company, or any parent of the
Company, then the Executive may terminate this agreement at any time for a
period of six months following such event on three months written notice to the
Company.
14.2 TERMINATION BECAUSE OF INCAPACITY
This Agreement will automatically terminate if the Company gives notice to the
Executive in accordance with clause 11.
14.3 IMMEDIATE TERMINATION BY THE COMPANY
The Company may terminate this Agreement immediately if the Executive:
(a) is guilty of grave misconduct or wilful neglect in the unanimous opinion
of all other directors; or
(b) is of unsound mind or becomes liable to be dealt with under any law
relating to mental health.
14.4 TERMINATION BY THE COMPANY
(a) Subject to clauses 14.2 and 14.3, this Agreement may only be terminated
by the Company in accordance with this clause 14.4.
(b) If prior to 1 June 2001, the Company and the Executive have not entered
into an agreement for the continued employment of the Executive, then
this agreement will be deemed to have been terminated by the Company
effective from 1 September 2001 and the Executive will cease to be an
Executive of the Company from the 1 September 2001.
14.5 PAYMENTS ON TERMINATION OR FAILURE TO RENEW AGREEMENT
Upon termination of the Executive's employment by either party and for whatever
reason (including clause 14.4), the Company shall:
(a) pay the Executive his then prevailing basic salary package for 12 months
from the effective date of termination notwithstanding that the
Executive no longer provides any services under this Agreement and
notwithstanding any other benefits or entitlements to which the
Executive is entitled under other terms of this Agreement. That amount
is to be paid monthly in arrears in twelve equal instalments and is to
be secured by a bank guarantee, or such other instalments (or lump sum)
and security as otherwise mutually agreed by the parties.
(b) pay the Executive all outstanding entitlements under this Agreement
including, but not limited to, unpaid salary due and payable up to the
date of termination and a sum representing any holiday or long service
entitlements which have accrued, but not been taken, up to and including
that date; and
(c) facilitate the Executive in transferring to another superannuation fund
the balance standing to the credit of his superannuation fund hereunder.
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14.6 TERMINATION PAYMENTS
The Company will ensure that all and any termination payments under this
agreement, including payments under clause 13.2 and 14.5, minimise the
Executives personal tax liability in respect of such payments, but the Company
shall not be obligated to make any payment in such a form as to be non tax
deductible to the Company.
14.7 RESIGNATION AS DIRECTOR
(a) On termination of this Agreement by operation of clause 14.3, the
Executive must resign from office as a director of the Company or any
Group Company.
(b) On termination of this Agreement for any reason other than under clause
14.3, the Executive shall be under no obligation to resign from office
as a director of the Company or any Group Company, but is required to
stand for reappointment as a director at the next meeting at which any
other person is required to stand for appointment or reappointment as a
director.
14.8 OBLIGATIONS ON TERMINATION
On termination of this Agreement, the Executive must return to the
Company immediately all tangible property of the Company or any Group
Company including, but not limited to, all books, documents, papers,
materials, credit cards, cars, computer records and keys held by the
Executive or under the Executive's control.
15 SHARES AND OPTIONS
15.1 CONFIRMATION
The Company and the Executive confirm that the Executive is entitled to
all shares and options referred to in the Previous Agreements under the
terms of such Previous Agreements and nothing in this agreement will
alter or otherwise effect the Executives rights, title and interest in
such shares and options.
15.2 CONFIRMATION OF SHARES SUBJECT TO LIMITED RECOURSE LOANS
The Company and the Executive confirm that the shares and options
detailed in Schedule A to the Executive Agreement have been issued to
the Executive in accordance with the agreed interpretation of the terms
of the Previous Agreements. The Company hereby warrants to the Executive
that the shares and options detailed in Schedule A of the Executive
Agreement have been properly issued.
15.3 LIMITED RECOURSE LOAN TERMS
The Company and the Executive agree that the terms of the Limited
Recourse Loans made by the Company to the Executive for the purpose of
acquiring the shares referred to in Schedule A of the Executive
Agreement are as set out in Schedule B to the Executive Agreement.
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15.4 NEW OPTIONS
The Company warrants to the Executive that the options detailed in
Schedule A of this Agreement have been properly issued.
16 INDEMNITY
To the extent permitted by law, the Company indemnifies the
Executive:
(a) against any liability incurred by him as an employee, officer
and or director of the Company, a subsidiary of the Company or
any parent of the Company to a person other than the Company or
a related body corporate of the Company; and
(b) against any loss, cost, damage, expense or liability which the
Executive suffers or incurs as a result of any litigation,
proceeding or judgment arising in connection with this
agreement, unless the liability, loss, cost, damage or expense
arises out of conduct on the part of the Executive which:
(a) is in material breach of this agreement;
(b) involves a lack of good faith, fraud, grave misconduct
or wilful neglect; or
(c) is contrary to the Company's express instructions in
relation to the management of the Company's business.
17 GENERAL
17.1 NOTICES
Any notice or other communication including, but not limited to, any
request, demand, consent or approval, to or by a party to this
agreement:
(a) must be in legible writing and in English addressed as shown at
the commencement of this agreement, or as specified to the
sender by any party by notice;
(b) where the sender is a company, must be signed by an officer or
under the common seal of the sender;
(c) is regarded as being given by the sender and received by the
addressee:
(i) if by delivery in person, when delivered to the
addressee;
(ii) if by post, three Business Days from and including the
date of postage/on delivery to the addressee; or
(iii) if by facsimile transmission, whether or not legibly
received, when received by the addressee, but if the
delivery or receipt is on a day which is not a Business
Day or is after 4.00 pm (addressee's time) it is
regarded as received at 9.00 am on the following
Business Day.
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17.2 GOVERNING LAW AND JURISDICTION
(a) This agreement is governed by the laws of New South Wales.
(b) The parties irrevocably submit to the exclusive jurisdiction of
the courts of New South Wales.
17.3 PROHIBITION, ENFORCEABILITY AND SEVERANCE
(a) Any provision of, or the application of any provision of, this
agreement which is prohibited in any jurisdiction is, in that
jurisdiction, ineffective only to the extent of that
prohibition.
(b) Any provision of, or the application of any provision of, this
agreement which is void, illegal or unenforceable in any
jurisdiction does not affect the validity, legality or
enforceability of that provision in any other jurisdiction or of
the remaining provisions in that or any other jurisdiction.
(c) If a clause is void, illegal or unenforceable, it may be severed
without affecting the enforceability of the other provisions in
this agreement.
17.4 WAIVER
(a) The failure of either party at any time to require performance
by the other party of any provision of this agreement does not
affect the party's right to require the performance at any time.
(b) The waiver by either party of a breach of any provision must not
be held to be a waiver of any succeeding breach of the provision
or a waiver of the provision itself.
17.5 ENTIRE AGREEMENT
This agreement supersedes all previous agreements in respect of the
Executive's terms of employment by the Company and embodies the entire
agreement between the parties, except for such terms of the Previous
Agreements that relate to shares, options and the Limited Recourse Loan.
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EXECUTED by the parties as an agreement.
SIGNED BY CHIP APPLICATION
TECHNOLOGIES LIMITED
(ACN 057 883 333) by authority of the
Board of Directors by its duly authorised
representative Lance D. O'Connor Director
in the presence of
/S/ LANCE DENIS O'CONNER
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Lance Denis O'Connor; Director
/S/ illegible
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Name of-Witness
SIGNED BY DAVID LANCELOT
MACHATTIE SMITH in the presence of
Signature of witness
/s/ DAVID MAC SMITH
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David Lancelot Machattie Smith
/S/ illegible
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Name of witness (print)
illegible
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SCHEDULE A
COLUMN 1 COLUMN 2. COLUMN 3.
NO. OF OPTION EXERCISE OPTION
DETAILS OPTIONS PRICE EXPIRY DATE
------- ------- ----- -----------
Options to be unconditionally issued by the 500,000 A$1.00 1 July 2000
Company to the Executive on 1 June 1999
Options to be unconditionally issued by the 500,000 A$1.60 1 July 2004
Company to the Executive on 1 June 1999
Options issued conditional upon and will not 500,000 $A1.15 1 July 2002
vest unless the Executive is an Executive of
the Company on 1 June 2000 (`vesting date')
Options issued conditional upon and will not 500,000 $A1.20 1 July 2004
vest unless the Executive is an Executive of
the Company on 1 June 2001 (`vesting date')
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OTHER TERMS AND CONDITIONS OF OPTIONS
The terms and conditions of the options are as follows:
1. ENTITLEMENT
The Option holder is entitled to subscribe for one fully paid ordinary
share in the capital of the Company for each Option held.
2. ISSUE PRICE
No amount is payable on issue of the Options.
3. EXERCISE PRICE
The exercise price of each Option is the exercise price referred to in
Column 2 of Schedule A.
4. OPTION PERIOD
Each Option may be exercised in whole or in part at any time prior to
the Option Expiry Date set out in Column 3 of Schedule A. Any Option
that is not exercised will automatically expire on the Option Expiry
Date.
5. TRANSFERABILITY
The Options may not be transferred without the prior consent of the
Company (which consent will not be unreasonably withheld) and only in
accordance with the Articles of Association of the Company.
6. PARTICIPATION IN BONUS ISSUES AND CASH ISSUES
6.1 If the Company makes a bonus issue of shares or other securities
convertible into ordinary shares pro rata to holders of ordinary shares
(other than an issue in lieu of dividends or by way of dividend
reinvestment pursuant to any shareholder election), the Option holder
will be entitled to participate in such issue, upon exercise of all or
part of the Options on or before the books closing date for that issue,
on the same basis as the holders of ordinary shares in the capital of
the Company.
6.2 If the Company makes an offer to subscribe for cash of ordinary shares
pro rata to the holders of ordinary shares the Option holder will be
entitled to participate in such offer, upon exercise of all or part of
the Options on or before the books closing date for that offer, on the
same basis as the holders of ordinary shares in the capital of the
Company.
6.3 The Company must notify the Option holder at least 12 business days
before the books closing date for determining entitlements to an offer
referred to in Clauses 6.1 or 6.2 of:
a) the proposed terms of the issue of the offer, and
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b) the right to exercise his Options under Clause 6,1 or 6.2 (as
the case may be).
7. ADJUSTMENTS FOR BONUS ISSUES AND CASH ISSUES
7.1 If the Company is listed on the Australian Stock Exchange and makes an
offer for cash of ordinary shares pro rata to the holders of ordinary
shares, the exercise price of each Option shall be reduced by the value
of the theoretical rights entitlement per cum rights share (E) provided
that the exercise price of each Option shall not be reduced to less than
the nominal value of the Company" ordinary shares, where E is calculated
in accordance with the following formula:
E = P - (S + D)
----------
N + 1
Where:
E = theoretical value of the rights entitlement attached to each share
(quoted cum rights).
P = the weighted average market price of fully paid ordinary shares of
the Company sold in the ordinary course of trading on the Australian
Stock Exchange Limited during the five trading days after the
announcement of the rights issue
S = subscription price (application money plus calls) for new shares
D = any dividends due but not yet paid on existing shares which will not
be payable in respect of new shares issued under the rights issue
N = number of cum rights shares required to be held to receive a right
to one new share
No change will be made to the number of shares to which the Option
holder is entitled.
7.2 If the Company makes a bonus issue of shares or other securities
convertible into ordinary shares pro rata to holders of ordinary shares
(other than an issue in lieu of dividends or by way of dividend
reinvestment pursuant to any shareholder election), the number of shares
issued on exercise of each Option will include the number of bonus
shares that would have been issued if the Option had been exercised
prior to the books closing date for bonus shares. No change will be made
to the exercise price.
8. RECONSTRUCTION
In the event of a reconstruction (including consolidation, sub-division,
reduction or return) of the issued capital of the Company, the number of
Options or the exercise price of Options or both shall be reconstructed
(as appropriate) in a manner which would not result in any benefits
being conferred on the Option holders which are not conferred on
shareholders (subject to the provisions with respect to rounding of
entitlements as sanctioned by the meeting of shareholders approving the
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reconstruction of capital) but in all respects the terms for the
exercise of Options shall remain unchanged.
9) RANKING OF SHARES ALLOTTED ON EXERCISE OF OPTIONS
All share allotted pursuant to the exercise of Options will, subject to
the Memorandum and Articles of Association of the Company, rank in all
respects (including rights relating to dividends) pari passu with the
existing ordinary shares of the Company on issue at date of allotment.
10. METHOD OF EXERCISE OF OPTIONS
10.1 Options may be exercised by written notice to the Secretary of the
Company. The exercise notice must specify the number of shares required
to be allotted, which number must be a multiple of 1,000 if only part of
the Options are exercised, or if the total number of Options held is
less than 1,000, then the total of all Options held must be exercised.
Options will be deemed to have been exercised on the date that the
application is lodged with the Secretary of the Company.
10.2 The Option holder must pay the exercise price in full to the Company on
the date of the exercise of the Options.
10.3 The exercise of less than all of the Option holder's Options will not
prevent the Option holder from exercising an Option in respect of the
whole or any part of the balance of the entitlement under his remaining
Options.
10.4 On exercise of the Options the Option holder must surrender his Option
certificate to the Company in respect of those Options being exercised.
10.5 If the Option holder exercises less than the total number of Options
then registered in his name:
a) The Option holder must surrender his Option certificate to the
Company, and
b) the Company must cancel that Option certificate and issue to the
holder a new Option certificate in respect of the Option
holder's unexercised Options.
10.6 Within 10 days of receipt of the application for the exercise of Options
and payment by the Option holder of the exercise price of such Options,
the Company must issue and allot to the Option holder the number of
fully paid ordinary shares in the capital of the Company specified in
the application.
10.7 If the Company is listed on the Australian Stock Exchange then it will
as soon as practicable after issue make application for the shares
issued upon exercise of Options by the Option holder to be granted
official quotation on the Australian Stock Exchange. The Options are not
to be listed on the ASX.
11. COMPULSORY ACQUISITION
If an entity ("Offeror") serves a notice on the option holder in
accordance with section 703(4) of the Corporations Law, all options,
which have not yet vested, become
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vested on the date that notice is served on the option holder,
irrespective of any unfulfilled conditions of vesting.
All options (including all existing options and all options that have
been vested by virtue of the preceding paragraph) will lapse on the date
3 months after delivery of that notice.
Unless waived by written notice from the Company, the option holder must
accept an offer to acquire all options which remain unexercised which is
delivered in accordance with section 703(4) of the Corporations Law.
This obligation is conditional on the terms offered by the Offeror being
no less favourable than the offer price paid or payable by the Offeror
in connection with the acquisition of ordinary shares in the Company
under the Offeror's take-over scheme or take-over announcement, adjusted
to reflect the offer for options rather than ordinary shares or on terms
determined by a Court as contemplated by section 703(8) of the
Corporations Law.
12. OPTION EXPIRY DATE
Subject to clause 11, the Option Expiry Date is the option expiry date
referred to in Column 3 of Schedule A.
13. TAXATION
The Option holder is exclusively and solely responsible for all and any
tax that may be payable as a result of the issue and or exercise of the
Options and or the sale of shares resulting from the exercise of the
Options. The issuer makes no warranty or representation in respect of
any taxation that may be applicable to the issue and or exercise of the
Options and or the sale of shares resulting from the exercise of the
Options.
14. UNEXERCISED OPTIONS
(a) This clause 14 applies to all Unexercised Options. If there is any
inconsistency between this clause and the other provisions of these
Terms and Conditions in respect of the exercise of Unexercised Options,
this clause prevails to the extent of this inconsistency.
(b) If, at the time an Unexercised Option is exercised:
i) the Company is not listed on ASX; and
ii) the Company is a subsidiary of another company (the "Parent
Company") and
iii) the Parent Company is listed on ASX or any Approved Exchange
the Company may, instead of issuing shares in the capital of the
Company, elect to have the Parent Company issue one fully paid share of
common stock in the Parent Company for each Unexercised Option held.
(c) If the Company makes the election referred to in paragraph (b):
i) in lieu of the Option holder's entitlement under clause 1 to
subscribe for one fully paid ordinary share in the capital of
the Company for each Option held, the Option holder will be
issued one fully paid share of
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common stock of the Parent Company for each Unexercised Option
held;
ii) in lieu of paying the exercise price to the Company in
accordance with Clause 10.2, the Option holder must pay the full
exercise price (which would have otherwise been payable to the
Company) to the Parent Company on the date of exercise of the
Unexercised Options and the Company is authorised to pay over
any such moneys received by it to the Parent Company without
further act or authority of the Option holder; and
iii) within 10 days of receipt of the application for the exercise of
the Unexercised Options and payment by the Option holder of the
exercise price of such Options, the Parent Company must issue to
the Option holder the number of fully paid shares of common
stock of the Parent Company specified in the application; and
iv) to avoid doubt, the Option holder has no entitlement to be
issued or allotted any shares in the capital of the Company upon
exercise of the Unexercised Options.
(d) In this Clause 14:
"Unexercised Options" means all Options that have been granted but are
unexercised
15. CHANGE OF CONTROL
If any one entity or person, acting alone or in association with others,
a) lodges with the Company, or any parent of the Company, a substantial
shareholders notice indicating an interest or
b) in any way obtains an interest in
more than 30% of the issued capital of the Company, or any parent of the
Company, then all options, which have not yet vested, become immediately vested,
irrespective of any unfulfilled conditions of vesting.
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