DATED July 1, 1994
ACN NO. 005 647 496
MOLDFLOW PTY. LTD.
XXXX XXXXXX XXXXXX
SERVICE AGREEMENT
XXXXXX XXXXXXX XXXXXX XXXXXXXX
Solicitors
00 Xxxxxx Xxxxxx
XXXXXXXXX XXX 0000
DX 000 XXXXXXXXX
Telephone (00) 000 0000
Facsimile (00) 000 0000
Reference JJS 932926 CML
TABLE OF CONTENTS
1. DEFINITIONS ....................................................... 1
2. CONTRACT OF EMPLOYMENT ............................................ 4
3. TERM OF EMPLOYMENT ................................................ 4
4. RESPONSIBILITIES OF THE EXECUTIVE ................................. 5
5. REMUNERATION AND TERMINATION BENEFITS ............................. 6
6. TERMINATION ....................................................... 7
7. CONFIDENTIALITY ................................................... 10
8. NON COMPETITION ................................................... 11
9. COMPANY RECORDS ................................................... 15
10. PATENT AND COPYRIGHT .............................................. 16
11. EXECUTIVE'S LIABILITY ............................................. 17
12. LEAVE ............................................................. 17
13. ARBITRATION ....................................................... 18
14. FURTHER ASSURANCES ................................................ 18
15. CONTINUANCE ....................................................... 19
16. NOTICE ............................................................ 19
17. SEVERANCE ......................................................... 20
18. PROPER LAW ........................................................ 20
19. ASSIGNMENT ........................................................ 20
20. ENTIRE AGREEMENT .................................................. 21
21. NO WAIVER ......................................................... 21
22. MODIFICATION ...................................................... 21
23. INTERPRETATION .................................................... 22
REMUNERATION SCHEDULE
CONFIDENTIAL
SERVICE AGREEMENT - EXECUTIVE
AGREEMENT dated
BETWEEN MOLDFLOW PTY. LTD.
AND XXXX XXXXXX XXXXXX
OF
00 XXXXXX XXXXXX, XXXXXX in the State of Victoria
RECITAL
The Executive has agreed to serve the Company upon the terms and conditions
contained in this Agreement.
AGREEMENT
1. DEFINITIONS
1.1 In this Agreement and unless a contrary intention appears:
`ASSOCIATE' in relation to a natural person includes:
(a) the spouse, brother, sister, lineal ancestor and lineal descendant
of the natural person;
(b) the trustee or trustees of any trust under which the Persons
described in paragraph (a) hereof or any of them may benefit; and
(c) any other Person or Persons in concert with whom the natural person
is acting, proposes to act or is or proposes to become associated,
whether informally or formally, in any way in respect of the matter
to which the reference relates;
`ASSOCIATE' in relation to a corporation includes:
(a) a director secretary and shareholder of the corporation;
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(b) a corporation that is a Related Corporation or an Associated Entity;
(c) a director secretary and shareholder of such Related Corporation or
Associated Entity;
(d) the trustee or trustees of any trust under which the Persons
described in paragraphs (a), (b) and (c) hereof or any of them may
benefit; and
(e) any Person or Persons in concert with whom the corporation is acting
or proposes to act or is or proposes to become associated, whether
informally or formally, in any other way in respect of the matter to
which the reference relates;
`ASSOCIATED ENTITY' means any corporation, company, trust, partnership or
other entity in which the Company or a Related Corporation has an
interest, whether direct or indirect, of 20% or more;
`BOARD' means the Board of Directors of the Company from time to time;
`COMMENCEMENT DATE' means 1 July 1994 or such other date as the parties
hereto may agree;
`COMPETITOR' means for the purposes of sub-paragraph 6.4(c)(i) of this
Agreement any Person who is, in the reasonable opinion of the Company, a
competitor of the Company and the Related Corporations and Associated
Entities of the Company or any of them;
`CUSTOMER' means for the purposes of sub-paragraph 6.4(c)(i) of this
Agreement any Person who is, in the reasonable opinion of the Company, a
customer of the Company and the Related Corporations and Associated
Entities of the Company or any of them;
`ENTITLEMENT' has the same meaning as in section 609 of the Corporations
Law;
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`INITIAL PERIOD' means the period of 3 calendar years;
`PATENT APPLICATION' includes in relation to a patent application any
continuation, continuation in part, division, re-issue or substitution of
lieu thereof;
`PATENT RIGHTS' means all rights of patents and/or Patent Applications
both in Australia and elsewhere in the World relating to each discovery,
invention, secret process or improvement in procedure referred to in
clause 10 of this Agreement whether in whole or in part including any
re-issues, continuations and continuations in part or any substitutions of
the patent applications;
`PERSON' and words signifying persons include individuals, firms,
partnerships, bodies corporate, associations and governments and
governmental, semi-governmental and local authorities and agencies;
`PROPRIETARY RIGHTS' means all rights and interest in every process and
improvement in procedure referred to in clause 10 of this Agreement and
its manufacture and use and shall include, but not be limited to, ideas,
knowhow, technology, confidential information, customer lists, data and
trade secrets;
`RELATED CORPORATION' has the same meaning as in section 50 of the
Corporations Law;
`RECOGNISED STOCK EXCHANGE' means Australian Stock Exchange Limited or any
other body corporate that is declared by regulations made pursuant to the
Corporations Law as a securities exchange for the purpose of the
Corporations Law;
`RELEVANT INTEREST' has the same meaning as in Part 1.2 Division 5 of the
Corporations Law;
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`REMUNERATION SCHEDULE' means the remuneration schedule to this Agreement
which is annexed to, and forms part of, this Service Agreement, as amended
from time to time;
1.2 Each word or expression not defined in sub-clause 1.1 of this Agreement
but used in this Agreement and defined in the Remuneration Schedule shall
have the same meaning as defined in the Remuneration Schedule.
1.3 Where there is any conflict between the provisions of this Agreement and
the Remuneration Schedule, the provisions of this Agreement prevail and
upon a written request being received from any party, all parties must
cause the Remuneration Schedule to be amended in order to remove that
conflict.
2. CONTRACT OF EMPLOYMENT
The Company agrees to employ the Executive and the Executive agrees to
serve the Company as an executive on the terms and conditions hereinafter
contained.
3. TERM OF EMPLOYMENT
3.1 Subject to termination pursuant to clause 6 of this Agreement, the
Executive's employment with the Company pursuant to this Agreement shall
be for the Initial Period commencing on the Commencement Date and
thereafter for such further period as is agreed between the Company and
the Executive pursuant to sub-clauses 3.2 and 3.3. If no such further
period is agreed between the Company and the Executive, this Agreement
will terminate at the expiration of the Initial Period.
3.2 If the Executive is not in breach of this Agreement the Executive may by
notice in writing given to the Company not later than 6 months before the
expiration of the Initial Period extend the period of this Agreement for a
further period of 12 months.
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3.3 (a) Not later than 6 months before the expiration of the Initial
Period or any further period under clause 3.2, the Company and the
Executive must confer with the view to reaching agreement as to
whether the term of employment of the Executive must be extended
and, if so, on what terms.
(b) Each party shall advise the other party no later than 3 months (or
such other period as they may agree in writing) prior to the
expiration of the Initial Period or any further period under clause
3.2 of their decision regarding the matters referred to in paragraph
3.3(a).
3.4 The terms of any further employment agreed pursuant to this clause shall
be governed by this Agreement except to the extent that the terms of this
Agreement are varied in writing by the parties.
4. RESPONSIBILITIES OF THE EXECUTIVE
During his employment under this Agreement, the Executive must:
(a) undertake such duties and exercise such powers, authorities and
discretions in relation to the business of the Company as the Board
or the Chief Executive Officer shall from time to time delegates to
him;
(b) in the discharge of such duties and the exercise of such powers,
authorities and discretions, conform to observe and comply with the
directions, restrictions and regulation of the Board or the Chief
Executive Officer made or given from time to time;
(c) comply with all legal requirements, statutory or otherwise,
pertaining to his position and responsibilities;
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(d) at all times comply with all lawful orders and instructions given to
him by the Board or the Chief Executive Officer and comply in all
respects with all or any rules and regulations which have been or
may after the date of this Agreement be established by the Company
for the conduct of its employees;
(e) faithfully serve the Company and at all times use his best
endeavours to promote the interests of the Company for the time
being;
(f) devote the whole of his attention, time and ability to the
performance of his duties pursuant to this Agreement during the
reasonable normal working hours prescribed by the Company and at
such other times as may be reasonably necessary;
(g) not without the written consent of the Company, which must not be
unreasonably withheld, during the continuance of this Agreement be
engaged or interested, either directly or indirectly, in any
capacity in any other trade, business or occupation whatsoever
whether or alone jointly with or as a director, manager, agent or
servant of any other Person but nothing herein shall prevent the
Executive from having an entitlement to not more than 10% of the
ordinary shares in any company whose share capital is quoted or
dealt in on a Recognised Stock Exchange and which is not carrying on
business in competition with the Company.
5. REMUNERATION AND TERMINATION BENEFITS
The Executive's remuneration and termination benefits shall be determined
in accordance with the provisions of the Remuneration Schedule.
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6. TERMINATION
6.1 Notwithstanding anything contained in this Agreement or in the
Remuneration Schedule, this Agreement and the Remuneration Schedule may
forthwith and with such notice (if any) as is provided in this clause or
payment in lieu of such notice (if any) as is provided in this clause be
determined by the Company at its absolute discretion if any one or more of
the following events occur:
(a) the Executive commits wilful misconduct, fraud or dishonesty;
(b) the Executive commits a material breach of this Agreement which is
not in the reasonable opinion of the Company reasonably capable of
remedy by the Executive;
(c) the bankruptcy of the Executive or the committing by the Executive
of an act of bankruptcy;
(d) the Executive becomes of unsound mind;
(e) the use or abuse of alcohol or drugs by the Executive to the extent
that, in the opinion of the Company, the Executive is no longer able
properly to perform his functions under this Agreement;
(f) the conviction of the Executive of an indictable criminal offence;
(g) the Executive fails to perform or observe any of the terms or
provisions of this Agreement for a period of at least 30 days (or
such longer period as may be agreed by the parties) following the
receipt of a written notice from the Company which:
(i) specifies the nature of the Executive's failure; and
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(ii) advises the Executive that should the failure continue for a
period 30 days (or such longer period as has been agreed by
the parties) from the date of the service of the notice, his
employment may be terminated forthwith;
(h) the Executive is prevented from carrying out his duties in a proper
and business like manner by reason of sickness, ill health or injury
for any consecutive period of not less than three months or for an
aggregate of 100 working days in any 12 calendar month period;
(i) the Company suspends or ceases its operations or a substantial
portion thereof; or
(j) the Executive fails to disclose an interest which, in the opinion of
the Company, has caused a conflict between the Executive's duty to
the Company and any other duty to which the Executive may be
subject, directly or indirectly.
The parties acknowledge and agree that each of the above grounds for
termination are separate and distinct and shall not operate in any way to
limit the generality of any other ground or grounds of termination set out
above, all of which shall have at all times independent operation.
6.2 The notice required for termination in each of the foregoing events is as
set out below:
EVENT NOTICE
(as set out in sub-clause 6.1)
(a) No period of notice required.
(b) No period of notice required.
(c) No period of notice required.
(d) 6 months notice.
(e) No period of notice required.
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(f) No period of notice required.
(g) No period of notice required.
(h) 6 months notice.
(i) 6 months notice.
(j) No period of notice required.
6.3 The Company may elect to make a payment to the Executive in lieu of notice
provided for in sub-clauses 6.2 or 6.5 and such payment will be the amount
equal to that proportion of the Executive's then current total
remuneration attributable to the period of notice (if any). If no period
of notice is required pursuant to sub-clause 6.2 of this Agreement, no
payment in lieu of notice is required.
6.4 (a) The Executive may, upon and only upon having served as an
employee of the Company pursuant to this Agreement for a period of
not less than 2 1/2 years, terminate this Agreement by giving the
Company not less than 6 months written notice of termination.
(b) The Company may choose to waive service of the notice period given
by the Executive pursuant to sub-clause 6.4(a) of this Agreement
and, in such case, shall, subject to sub-clause 6.4(c) of this
Agreement, pay the Executive an amount equal to that proportion of
the Executive's total remuneration attributable to the waived period
of notice as if the employment had continued during the waived
period.
(c) (i) If the Executive intends entering into the employment of, or
does so enter into the employment of, a Competitor or Customer
during the period of written notice of termination given by
the Executive pursuant to sub-clause 6.4(a) of this Agreement,
then and in that event the Company will not be under any
obligation to make any payments to the Executive pursuant to
sub-clause 6.4(b) of this Agreement in lieu of such waived
period of notice and the Executive must forthwith refund
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to the Company any moneys paid under that sub-clause by the
Company to the Executive.
(ii) For the purposes of sub-clause 6.4(c)(i), the phrases
`entering into the employment of' and `enter into the
employment of' includes being or becoming directly or
indirectly a member, shareholder, director, employee,
consultant, agent or senior executive in, of, for, to or in
respect of (as the case may be) any Person or Persons.
6.5 If during the term of this Agreement there is a change to the Executive's
employment conditions which, by an objective reasonable standard, is to
his material detriment, the Executive may at any time during the period of
3 months after that change, elect to terminate this Agreement and the
Remuneration Schedule by not less than 3 months written notice to the
Company.
7. CONFIDENTIALITY
7.1 The Executive must:
(a) not, except as authorised or required by his duties as an employee
of the Company, reveal to any Person or Persons any of the trade
secrets, secret or confidential operations, processes or dealings or
any information concerning the Company's business or the
organisation, business finances, transactions or affairs of the
Company which may come to his knowledge during or at any time after
the continuance of this Agreement;
(b) keep with complete secrecy all confidential information entrusted to
him;
(c) not use or attempt to use, nor assist any other person to use or
attempt to use, any such information in any manner which may injure
or cause loss either directly
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or indirectly to the Company or its business or may be likely so to
do.
7.2 Each restriction set out in sub-clause 7.1 will continue to apply after
the termination of this Agreement without limitation in point of time but
will cease to apply to information which comes into the public domain
other than by breach of this Agreement or by any breach of any other duty
or obligation of confidentiality owed to the Company.
7.3 For the purposes of this clause 7, `Company' includes jointly and
severally the Company and each Related Corporation of the Company and each
Associated Entity of the Company.
8. NON COMPETITION
8.1 In consideration of the employment of the Executive and other valuable
consideration whether directly or indirectly received by the Executive
from the Company and to reasonably protect the goodwill and the business
of the Company, the Executive agrees with the Company that:
(a) this clause will have effect as if it were several separate
covenants and restraints consisting of each separate covenant and
restraint obtained by the combinations set out in paragraph (b) of
this sub-clause combined with each separate period of time set out
in paragraph (c) of this sub-clause and of each such separate
combination combined with each separate area set out in paragraph
(d) of this sub-clause and if any of these several separate
covenants and restraints are or become invalid or unenforceable for
any reason, then that invalidity or unenforceability will not affect
the validity or enforceability of any of the other separate
covenants and restraints;
(b) without the prior written consent of the Company, the Executive will
not, whether directly or indirectly,
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for the periods and within the areas specified in sub-clauses 8.1(c)
and (d) respectively:
(i) be:
(A) a member, or
(B) a shareholder, or
(C) a debenture holder, or
(D) a director, or
(E) an employee, or
(F) a consultant, or
(G) an agent, or
(H) senior executive
in, of, for, to, or in respect of (as the case may be) any,
A. corporation, or
B. Person, or
C. firm, or
D. business, or
E. trust
which is engaged in or carries on any business within the
defined areas which is or, in the reasonable opinion of the
Company, is likely to be during the period of restraint in
competition to any material extent with any business carried
on by the Company or any Related Corporation or Associated
Entity (`Specified Business');
(ii) for himself or in any of the capacities listed in
sub-paragraph 8.1(b)(i) or otherwise:
(A) induce or solicit any employee or agent of the Company
or any Related Corporation or Associated Entity of the
Company to leave the employment or agency of the
13
Company or such Related Corporation or Associated
Company;
(B) approach or accept any approach from any customer of the
Company or any Related Corporation or Associated Entity
of the Company with the view to soliciting for himself
the business of that customer;
(C) seek to obtain orders in respect of any services
provided by the Company or any Related Corporation or
Associated Entity of the Company to any Person who at
the date of determination or termination of this
Agreement is a customer of, or in the habit of dealing
with, the Company or any Related Corporation or
Associated Entity of the Company or represents himself
as being in any way connected or having formerly been
connected with or interested in the Specified Business;
(D) compete or seek to compete with the Company or any
Related Corporation or Associated Entity of the Company
in the Specified Business or in any way interfere with
the Specified Business;
(c) the periods referred in paragraph 8.1(b) are:
(i) during the period of 1 year from the date of termination of
this Agreement;
(ii) during the period of 6 months from the date of termination of
this Agreement;
(d) the areas referred to in paragraph 8.1(b) are:
(i) Australia;
(ii) Victoria;
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(iii) New South Wales;
(iv) Queensland;
(v) Western Australia;
(vi) Tasmania;
(vii) Australian Capital Territory;
(viii) Northern Territory;
(ix) United States of America;
(x) Great Britain;
(xi) Japan;
(xii) each other place where the Company has an office, agency or
established presence.
8.2 The parties agree that:
(a) any combination of the acts referred to in paragraph 8.1(b) by the
Executive for the separate periods and within the separate areas
referred to would be unfair and calculated to damage the Specified
Business and would lead to substantial loss to the Company;
(b) each separate covenant and restraint in this Agreement is reasonable
and that substantial consideration has been received for it both
directly and indirectly by the party to be restrained by these
covenants and that the Executive who is affected by this clause has
been responsible for and approves its drafting;
(c) the words `directly or indirectly interested or engaged in or
concerned with' will be given the widest possible interpretation and
will include without limitation management without salary, advising
or influencing a competitive business on a continuing basis (whether
for direct remuneration or benefit or otherwise), establishing or
being interested in or influencing such a competitive business
through any association or arrangement with any Person, nominee or
trust in or over which any interest or influence (absolute or
partial) is held.
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8.3 The provisions of this clause 8 do not in any way operate to limit the
generality of any other clause of this Agreement, all of which will have
at all times independent operation unrestricted by provisions of this
clause 8.
8.4 The Executive must not, after the termination of this Agreement for any
cause whatever, represent himself as being in any way connected with or
interested in the business of the Company or any Related Corporation or
Associated Entity of the Company.
9. COMPANY RECORDS
9.1 The Executive must not, during his employment with the Company or at any
time after the termination of his employment, irrespective of the time,
manner or cause of such termination of his employment, directly or
indirectly disclose to any Person or Persons the requirements of the
Company or any Related Corporation or Associated Entity of the Company or
the name and address of any customer of the Company or any Related
Corporation or Associated Entity of the Company. This restriction shall
continue to apply after the termination of this Agreement without
limitation in point of time.
9.2 The Executive must not, during the continuance of this Agreement, make
otherwise than for the benefit of the Company any notes or memoranda
relating to any matter within the scope of the business of the Company or
any Related Corporation or Associated Entity of the Company or concerning
any of the dealings or affairs of the Company or any Related Corporation
or Associated Entity of the Company.
9.3 The Executive must, upon the termination of his employment with the
Company, irrespective of the time, manner or cause of such termination,
surrender to the Company all lists, and all notes and other documents
relating to the business of the Company or any Related Corporation or
Associated Entity of the Company and all other property whatever
16
belonging to the Company or any Related Corporation or Associated Entity
of the Company and the Executive agrees not to retain any copies of
documents belonging to the Company or any Related Corporation or
Associated Entity of the Company.
9.4 The provisions of this Agreement are in addition to and not in derogation
of any of the common law rights of the Company pertaining to the
Executive's services with the Company.
10. PATENT AND COPYRIGHT
10.1 The Executive acknowledges and agrees that he will forthwith disclose to
the Company any discovery, invention, literary artistic or musical work,
secret process or improvement in procedure made, developed or discovered
by the Executive whilst in the service of the Company in connection with
or in any way affecting or relating to the business of the Company or any
Related Corporation or Associated Entity of the Company or capable of
being used or adopted for use with that business or in connection with
that business and any copyright, Patent Rights and Proprietary Rights
attaching to any of them all of which will belong to and be the absolute
property of the Company.
10.2 The Executive, if and whenever required by the Company so to do (whether
during or after the termination of his employment), must at the expense of
the Company or its nominee apply or join in applying with the Company (at
the discretion of the Company) for letters patent or other similar
protection in Australia or in any other part of the world for any such
invention, secret process or improvement as referred to in sub-clause 10.1
and execute all instruments and do all things necessary for vesting the
letters patent or other similar protection when obtained and all right and
title to and interest in them (including all Patent Rights and Proprietary
Rights) in the Company or its nominee absolutely and as sole beneficial
owner or such other person as the Company may require.
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10.3 The Executive irrevocably appoints the Company to be his attorney in his
name and on his behalf to execute and do any such instrument, act 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 and in
favour of any third party a certificate in writing signed by any director
or secretary of the Company that any instrument or act falls within the
authority hereby conferred will be conclusive evidence that such is the
case.
10.4 The provisions of this clause will continue to apply after the termination
of this Agreement but without limitation in point of time.
11. EXECUTIVE'S LIABILITY
The Executive indemnifies and undertakes to keep indemnified the Company
and each Related Corporation or Associated Entity of the Company in
respect of loss or damage suffered or incurred by the Company or any
Related Corporation or Associated Entity of the Company, where such loss
or damage arises or is incurred as a direct result of any wilful breach of
the Executive's obligations under the terms of this Agreement. Without in
anyway limiting the generality of any other provision of this Agreement,
this clause 11 is in addition to and not in derogation of any of the
common law or other rights of the Company pertaining to the Executive's
services with the Company.
12. LEAVE
12.1 The Executive will be entitled to 4 weeks annual leave in each year of his
employment and during such leave will be entitled to the receipt of total
remuneration as provided in the Remuneration Schedule. Leave must be taken
at such time or times as agreed upon by the Company and the Executive.
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12.2 The Executive will be entitled to 5 days sick leave for each completed
year of service of his employment, and during such leave will be entitled
to the receipt of total remuneration as provided in the Remuneration
Schedule. Any sick leave entitlement not used in any year will accrue and
may be utilized in any subsequent year. Any sick leave entitlement not
utilized at the date of termination of employment lapses.
12.3 The Company may, at its discretion, grant to the Executive special leave
for purposes other than those referred to in sub-clause 12.1 of 12.2 on
such terms as the Company may consider appropriate.
13. ARBITRATION
If any difference or dispute should arise between the parties to this
Agreement as to the meaning of any of the terms and conditions of this
Agreement or the Remuneration Schedule or as to the rights, duties or
obligations of either party under this Agreement or the Remuneration
Schedule or as to any matter or thing arising out of this Agreement or the
Remuneration Schedule, the difference or dispute must be submitted to
arbitration in Victoria, Australia at the Australian Centre for
International Commercial Arbitration in accordance with and subject to the
Institute of Arbitrators Australia Rules for the conduct of commercial
arbitrations.
14. FURTHER ASSURANCES
Each of the parties hereto must, and shall use their best endeavours to
procure their Associates to, sign, execute and do all such further
documents, acts, matters and things as shall be necessary or desirable to
give effect to the provisions of this Agreement.
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15. CONTINUANCE
The expiration or determination of this Agreement however arising shall
not affect such of the provisions of this Agreement as are expressed to
operate or to have effect after this Agreement and will be without
prejudice to any right of action already accrued to either party in
respect of any breach of this Agreement by the other party.
16. NOTICE
16.1 A notice to be given by a party to another party under this Agreement must
be:
(a) in writing;
(b) directed to the recipient's address specified above or as varied by
written notice; and
(c) left at or sent by prepaid registered post, hand delivery, telex or
facsimile to that address,
and will be deemed to be duly given:
(d) on the day of delivery;
(e) 3 days after the date of posting by prepaid registered post; or
(f) if sent by telex or facsimile, when the answerback or message
confirmation is received,
as the case may be.
16.2 The provisions of this clause are in addition to any other mode of service
permitted by law.
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17. SEVERANCE
17.1 If a provision of this Agreement is void or voidable by either party or
unenforceable or illegal but would not be void or voidable or
unenforceable or illegal as aforesaid if it were read down and it is
capable of being read down, it must be read down accordingly.
17.2 If notwithstanding sub-clause 17.1 of this Agreement a provision of this
Agreement is still void or voidable or unenforceable or illegal:
(a) if the provision would not be void or voidable or unenforceable or
illegal if a word or words (as the case may be) were omitted, that
word or those words are hereby severed; and
(b) in any other case, the whole provision is severed, and the remainder
of this Agreement has full force and effect.
18. PROPER LAW
The validity, interpretation and performance of this Agreement will be
governed by the laws of the State of Victoria and the parties submit to
the exclusive jurisdiction of the Courts of that State and of any Courts
competent to hear appeals those Courts. Without prejudice to any other
permitted mode of service, service on a party of any writ of summons or
notice thereof and of any other documents or pleadings in any action
between the parties may be effected by delivering or leaving them at the
address of the party to be served set out in this Agreement.
19. ASSIGNMENT
19.1 This Agreement may be assigned by the Company to any successor in interest
to its business or any part thereof.
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19.2 The Executive shall not assign, transfer, convey, pledge or otherwise
encumber this Agreement or his right title and interest herein.
20. ENTIRE AGREEMENT
This document embodies the entire understanding and the whole agreement
between the parties hereto relative to the subject matter of this
Agreement and all previous negotiations, representations, warranties,
arrangements and statements (if any) whether expressed or implied with
reference to the subject matter of this Agreement or to the intentions of
any of the parties to this Agreement are merged in this Agreement and
otherwise are hereby excluded and cancelled.
21. NO WAIVER
21.1 The failure of a party at any time to require any performance by another
party of a provision of this Agreement does not affect in any way the full
right of the waiving party to require that performance subsequently.
21.2 The waiver by any party of a breach of a provision will not be deemed a
waiver of all or part of that provision or any other provision or of the
right of that party to avail itself of its rights subsequently.
21.3 Any waiver of a breach of this Agreement must be in writing signed by the
party granting the waiver, and shall be effective only to the extent
specifically set out in that waiver.
22. MODIFICATION
This Agreement may only be altered in writing signed by both parties.
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23. INTERPRETATION
In this Agreement except to the extent that the context otherwise
requires:
(a) words importing the singular include the plural and vice versa and
words importing a gender include other genders;
(b) a reference to an Act of Parliament or Law or section or schedule of
that Act or Law shall be read as if the words `or any statutory
modification or re-enactment thereof or substitution thereof' were
added to the reference and includes all statutory instruments issued
under that Act or Law as at the date of this Agreement;
(c) where a word or phrase is given a particular meaning, other parts of
speech or grammatical forms of that word or phrase have
corresponding meanings;
(d) a reference to a party to this Agreement or any other document or
agreement includes its successors and permitted assigns;
(e) a reference to a party will be construed as a reference to a party
to this Agreement;
(f) a reference to a document or agreement including this Agreement
includes a reference to that document or agreement as amended,
novated, supplemented, varied or replaced from time to time;
(g) headings, other than the word `AGREEMENT' on page 1, will be
disregarded;
(h) references to currency shall be construed as references to
Australian currency;
23
(i) a reference to writing includes typewriting, printing, lithography,
photography and any other mode of representing or reproducing words
in a permanent and visible form;
(j) if any day appointed or specified by this Agreement for the payment
of any money falls on a Saturday, Sunday or a day on which trading
banks (as defined in the BANKING XXX 0000 of the Commonwealth) are
not open for business in Melbourne (`Non Business Day'), the day so
appointed or specified shall be deemed to be the next day which is
not a Non Business Day.
EXECUTED as an agreement.
THE COMMON SEAL of MOLDFLOW PTY. LTD. ) [SEAL]
)
is affixed in accordance with )
its articles of association )
in the presence of: )
/s/ Xxxx Xxxxxxxx /s/ Xxxx Xxxxxxxxx
....................................... .....................................
Secretary Executive
SIGNED )
by XXXX XXXXXX XXXXXX )
in the presence of: )
/s/ A. Xxxxxx Xxxxxx
....................................... .....................................
Signature of Witness Signature of #
.......................................
Name of Witness (*Print)
CONFIDENTIAL
REMUNERATION SCHEDULE
1. DEFINITIONS
1.1 In this Schedule, unless a contrary intention appears from the context:
`BURDEN OF FRINGE BENEFITS TAX' means the amount of fringe benefits tax
payable by the Company referable to the particular benefits provided by
the Company to the Executive multiplied by a factor determined by the
following formula:
1
-------
(1 - T)
where T means the rate of tax payable by companies of the kind of the
Company as prescribed by the INCOME TAX RATES XXX 0000 of the
Commonwealth';
`BURDEN OF NON DEDUCTIBILITY' means an amount calculated according to the
following formula:
1
A x -------
(1 - T)
where:
A means the actual cost to the Company of providing the particular
benefits provided by the Company to the Executive
T means the rate of tax payable by companies of the kind of the Company as
prescribed by the INCOME TAX RATES XXX 0000 of the Commonwealth';
2
`FBT ACT' means the FRINGE BENEFITS TAX ASSESSMENT XXX 0000 of the
Commonwealth';
`FRINGE BENEFITS' means fringe benefits within the meaning of the FBT
Act';
`INITIAL REMUNERATION PERIOD' means the calendar year commencing on the
date of execution of the Principal Agreement;
`PRINCIPAL AGREEMENT' means the Service Agreement to which this Schedule
is annexed and forms part;
`REMUNERATION PERIOD' means a calendar year the first day of which is the
date of execution of the Principal Agreement or any anniversary of that
date;
`TOTAL REMUNERATION' means the total cost to the Company of paying salary
and providing benefits to an Executive pursuant to clause 2.1(a) of this
Schedule.
1.2 Each word or expression not defined in clause 1.1 of this Schedule but
used in this Schedule and defined in the Principal Agreement will have the
same meaning as defined in the Principal Agreement.
2. REMUNERATION
2.1 In consideration of the service to be provided by the Executive and the
covenants given by the Executive under the Principal Agreement, the
Company shall pay or provide to or for the Executive:
(a) during the initial Remuneration Period, Total Remuneration of
$120,000 per annum to be paid or provided by the Company to the
Executive by way of salary of such amount and benefits of such kinds
and cost to the Company as the Company and the Executive may agree
and in the absence of any such agreement
3
to be paid and provided by the Company to the Executive entirely by
way of salary; and
(b) unless the Principal Agreement is terminated by the Company as a
result of any act or default of the Executive, other than under
clause 6.1(d), (h) or (i) $300,000 upon termination of the Principal
Agreement except that the payment shall be $200,000 if the net
profit before tax of Moldflow Pty Ltd for the financial year ending
30 June 1994 is less than $1,900,000. For the purpose of this clause
the net profit before tax of Moldflow Pty Ltd shall be the amount
agreed by its auditors to be the net profit before tax and shall be
calculated in accordance with the same accounting principles
observed by Moldflow Pty Ltd in preparing its budget for the
financial year ending 30 June 1994.
The Company must reimburse all reasonable and proper expenses incurred by
the Executive in carrying out his duties in accordance with this Schedule
and the Principal Agreement subject always to the presentation of fully
supportable claims approved by the Company.
2.2 For the purposes of this Clause, the cost to the Company of any benefits
provided by the Company to the Executive shall be the actual cost to the
Company of providing such benefits (as determined by the Company and
notified to the Executive) and shall include:
(a) where the benefits are fringe benefits and are provided to the
Executive prior to 1 April 1994 - the amount which would be the
fringe benefits taxable amount (as defined in S.136(1) of the FBT
Act) if calculated in respect of such benefits increased by the
burden of Fringe Benefits Tax;
(b) where the benefits are fringe benefits and are provided to the
Executive on or after 1 April 1994 - the amount which would be the
fringe benefits
4
taxable amount (as defined in S.136AA of the FBT Act) if calculated
in respect of such benefits; or
(c) where the benefits are not fringe benefits and the Company is not
entitled to an allowable deduction under the Income Tax Assessment
Act in respect of such benefits - the burden of non deductibility.'
2.3 Where by the last day of a Remuneration Period the total cost to the
Company of the benefits provided to the Executive does not equal the cost
of the benefits agreed by the Company to be provided to the Executive for
that Remuneration Period:
(a) the balance then remaining to be provided to the Executive must be
provided in such manner as the parties agree or failing such
agreement in the form of additional salary; and
(b) if the employment of the Executive is not then ceasing, the cost to
the Company of any excess benefits provided during the remuneration
period shall be deducted from the amount of the Total Remuneration
to be paid or provided for the following Remuneration Period, or if
the employment of the Executive has ceased an amount equal to the
cost to the Company of such excess must be paid forthwith by the
Executive to the Company.
3. REVIEW OF REMUNERATION
3.1 The Company agrees that, while the Executive's employment continues under
the Principal Agreement, for each Remuneration Period it must, at least 28
days prior to the expiration of such Period, review the level of Total
Remuneration, and the components of that remuneration, to which the
Executive shall be entitled in the following Remuneration Period.
5
3.2 The Company's decision in relation to the level of Total Remuneration for
the following Remuneration Period pursuant to sub-clause 3.1 of this
Schedule must be reasonable, and must not be less than the Total
Remuneration paid during the initial Remuneration Period, but otherwise
will be final and binding on the Executive.
3.3 The Executive will not be entitled to an increase in Total Remuneration
otherwise than as a result of a review conducted pursuant to clause 3 of
this Schedule.
3.4 As soon as is reasonable practicable following the review conducted
pursuant to this clause by the Company, the Company shall provide to the
Executive notice in writing of its decision. Where the Executive believes
it to be appropriate and so notifies the Company, the Company must advise
the Executive as soon as reasonably possible after the Executive's
notification of the reasons upon which the decision was based.
