Dated 2008 Executive Service Agreement Parties Mission NewEnergy Limited
Exhibit
10.9
Dated
2008
Parties
Mission
NewEnergy Limited
ACN 117
065 719
Xxxxx
Xxxxxx
1
Contents
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1.
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Definitions
|
1
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2.
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Interpretation
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3
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3.
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Mission
NewEnergy Commencement Date and duration
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3
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4.
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Duties
of the Position
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4
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5.
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Place
of work
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4
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6.
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Hours
of work
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4
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7.
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Covenants
of the Executive
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5
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8.
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Remuneration
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5
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9.
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Expenses
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6
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10.
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Period
of service and leave
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6
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11.
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Mission
NewEnergy directions
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6
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12.
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Confidential
Information
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7
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13.
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Intellectual
property
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7
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14.
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Moral
Rights
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7
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15.
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Termination
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8
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16.
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Return
of Property of Mission NewEnergy
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10
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17.
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Compliance
with obligations on Termination
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10
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18.
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Resignation
as an officer
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10
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19.
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Non-competition
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10
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20.
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Conflicting
obligations
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11
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21.
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Notices
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11
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22.
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General
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11
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Agreement
made 2008
|
Parties
|
Mission NewEnergy Limited
ACN 117 065 719
|
Xxxxx 0,
00, Xx Xxxxxxx Xxxxxxx, Xxxxx, Xxxxxxx Xxxxxxxxx 0000
(Mission
NewEnergy)
Xxxxx
Xxxxxx
of 0 Xxxx
Xxxxxx Xxxxxxx Xxxxx XXX 0000
(Executive)
Introduction
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A.
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Mission
NewEnergy carries on the business of the production and sale of biodiesel
and other products (Business).
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B.
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Mission
NewEnergy wishes to employ the Executive as Head of Corporate Finance,
Mergers & Acquisitions of Mission NewEnergy on the terms and
conditions set out in this
Agreement.
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It
is agreed
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1.
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Definitions
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1.1
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In
this Agreement, unless the context requires
otherwise:
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(1)
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Agreement means this
Agreement including any Schedule or Annexure to
it;
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(2)
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ASX means the Australian
Stock Exchange;
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(3)
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Board means the board of
directors of Mission NewEnergy;
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(4)
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Business means the
business described in Introduction
A;
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(5)
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Business Day means a day other
than a Saturday or Sunday in which trading banks in Kuala Lumpur, Malaysia
or Perth, Western Australia are open to transact business
generally;
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(6)
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Client means any person,
firm or body corporate that purchases Mission NewEnergy' products,
services or both during the Term;
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(7)
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Commencement Date means the date
specified at Item 1 of the
Schedule;
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(8)
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Competing Business means a
business whether operated as a company, partnership or sole trader which
as a substantial or major part of its business engages
in:
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(a)
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an
activity which is the same as, similar to or competitive with any activity
engaged in by Mission NewEnergy as a substantial or major part of its
business during the term of this Agreement;
or
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(b)
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the
manufacture or sale of biodiesel or other similar chemical products to
those produced by Mission
NewEnergy:
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(9)
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Confidential Information means all
information relating to the current or future business interests,
methodology or affairs of Mission NewEnergy (or any Related Body
Corporate) or any person or entity with it deals or is concerned,
including, but not limited to:
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(a)
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financial
and business (including technical, marketing and sales and human
resources) information, strategies and plans of Mission
NewEnergy;
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(b)
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business
records, information, notes, products know-how, trade secrets, geological
or other data;
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(c)
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the
Remuneration and other benefits provided to the Executive (including any
future increases) under this
Agreement;
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(d)
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names
and lists of Mission NewEnergy' employees, Clients, prospective Clients
and suppliers;
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(e)
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trade
secrets, inventions, patents and novel designs of Mission
NewEnergy;
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(f)
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know-how
and technology developed or used by Mission NewEnergy;
and
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(g)
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documents
including software, manuals, diagrams, graphs, charts, projections,
specifications, estimates, records, concepts, discoveries, ideas, designs,
formulae, processes, documents, accounts, plans, drawings, methods,
techniques, price lists, customer lists, enquiry lists, market research
information, correspondence, letters and papers of every description
including all copies of or extracts from such information relating to its
affairs or business,
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reasonably
regarded as confidential, being information not in the public domain or known to
competitors of Mission NewEnergy other than information in the public domain or
known to competitors as a result of a breach of confidentiality by the Executive
or any other person;
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(10)
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Duties means the duties
set out in Item 3 of the Schedule;
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(11)
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Expiration Date means
the date specified in Item 2 of the
Schedule;
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(12)
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Group means Mission
NewEnergy and each of its Related Bodies
Corporate;
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(13)
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Listing Rules means the listing
rules of the ASX;
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(14)
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Moral Rights has the same
meaning as that term has in Part IX of the Copyright Xxx 0000
(Cth);
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(15)
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Position means the
position of Head of Corporate Finance, Mergers & Acquisitions of
Mission NewEnergy;
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(16)
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Property Belonging to Mission NewEnergy means any
property of any kind which is owned by Mission NewEnergy or any Related
Body Corporate or to the possession of which Mission NewEnergy or any
Related Body Corporate is legally entitled, including without limitation
all documents in whatever form, including copies of such documents, mobile
phones, motor vehicles, computers, keys, identity cards or passes and
credit cards;
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(17)
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Mission
NewEnergy Related
Body Corporate means any
related body corporate of Mission
NewEnergy:
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(a)
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under
the meaning ascribed to it by the Corporations Xxx 0000
(Cth); and
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(b)
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under
the equivalent provisions of the Malaysian Companies Xxx
0000 (Malaysia),
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(18)
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Remuneration
means:
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(a)
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the
Salary and Superannuation set out in item 4 of the
Schedule
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(19)
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Restraint Area
means:
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(a)
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South
East Asia
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(20)
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Restraint Period means a period
of:
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(a)
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1.5
years commencing on the Termination Date;
and
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(21)
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Salary
means:
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(a)
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the
cash salary component of the Remuneration as set out in item 4(a) of the
Schedule; and
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(22)
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Share means a fully paid
ordinary share in the capital of Mission
NewEnergy;
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(23)
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South East Asia means Australia,
Burma, Cambodia, Indonesia, Laos, Malaysia, Papua New Guinea, Philippines,
Singapore, Thailand, Vietnam and
India;
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(24)
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Term means the period
from the Commencement Date until the Expiration
Date;
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(25)
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Termination Date means the date on
which the Executive's employment with Mission NewEnergy ceases for
whatever reason; and
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(26)
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Works means all
programs, programming, literary, dramatic, musical and artistic work
within the meaning of the Copyright Xxx 0000
(Cth).
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2.
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Interpretation
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2.1
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In
this Agreement, unless the context
requires:
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|
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(1)
|
headings
and subheadings are for convenience only and do not affect
interpretation;
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(2)
|
the
Schedule forms part of this
Agreement;
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(3)
|
where
an expression is defined, another part of speech or grammatical form of
that expression has a corresponding
meaning;
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(4)
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an
expression denoting a person includes a corporation and any other entity
and any association or body, whether having separate legal existence or
not;
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(5)
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a
reference to any legislation or legislative provision includes any
statutory modification or re-enactment of, or legislative provision
substituted for, and any statutory instrument issued under, that
legislation or legislative
provision;
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(6)
|
a
reference to dollar amounts is a reference to Australian currency unless
otherwise specified;
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(7)
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the
singular includes the plural and vice versa;
and
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(8)
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a
word denoting a gender includes the other
gender.
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3.
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Mission
NewEnergy Commencement Date and
duration
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|
3.1
|
The
Executive's employment with Mission NewEnergy under the terms of this
Agreement commences on the Commencement Date and ceases on the Expiration
Date, unless terminated earlier in accordance with clause
15.
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|
3.2
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The
Executive may also be appointed a director of any Related Body Corporate
of Mission NewEnergy as determined by the Board, on or after the
Commencement Date. The Executive is not entitled to receive any
additional remuneration for any such
role.
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4.
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Duties
of the Position
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4.1
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The
Executive will perform the Duties and such other duties, which may be required by
Mission NewEnergy from time to
time.
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4.2
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Mission
NewEnergy may direct the Executive to perform the Duties, and such other
duties as determined by Mission NewEnergy from time to time, for any
Related Body Corporate of Mission NewEnergy. Regardless of any
such direction, the remaining terms and conditions of this Agreement will
continue to apply, unless otherwise agreed in
writing.
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4.3
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The
parties acknowledge that the Position, the Duties, role and levels of
responsibility may be varied from time to time and the parties agree that
regardless of any such variations the remaining terms and conditions of
this Agreement will continue to apply, unless otherwise agreed in
writing.
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4.4
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The
Executive must comply with any policies, procedures and practices of
Mission NewEnergy as they exist from time-to-time and the Executive
acknowledges that:
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(1)
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Mission
NewEnergy may vary any policies and procedures;
and
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(2)
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to
the extent that any such policies and procedures apply to Mission
NewEnergy, these policies and procedures are guidelines only and do not
form terms of this Agreement or contractual conditions upon which the
Executive can rely.
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5.
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Place
of work
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5.1
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The
Executive is based in Sydney, New South Wales. Mission
NewEnergy will arrange suitable premises in Sydney New South Wales to
allow the executive to conduct the Duties prescribed by the
role. The Executive may also be required to work at such
locations as Mission NewEnergy may reasonably require from time to
time.
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5.2
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The
Executive must undertake such travel in the course of performing the
Duties, as Mission NewEnergy reasonably requires from time to time as
directed by Mission NewEnergy. The Executive will be reimbursed
for expenses incurred in such travel in accordance with clause
9.
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6.
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Hours
of work
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6.1
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The
Executive's normal working hours will be the operating hours of the
Business up to a maximum of 38 ordinary hours per
week.
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6.2
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The
Executive may be required to work additional hours to those specified in
clause 6.1. The Remuneration has been set at a level to take
into account the Duties and the hours required to perform them properly,
up to a maximum average of 60 hours per week, averaged over each 12 month
period of the Term.
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6.3
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The
Executive is not entitled to any additional benefits, monetary or
otherwise, for any hours the Executive works in accordance with clauses
6.1 and 6.2.
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6.4
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Mission
NewEnergy may, in its discretion, vary the hours of work from time to
time.
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6.5
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Subject
to clause 6.2, the Executive will not be required to work on gazetted
public holidays in New South Wales;
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7.
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Covenants
of the Executive
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7.1
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The
Executive covenants with Mission NewEnergy that he
will:
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(1)
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assume
and exercise the powers and carry out the Duties appropriate to the
Position and as shall from time to time be assigned to him by the
Board;
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(2)
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promote,
develop and extend the Business and do all things within his power to
enhance and extend the prosperity, business and reputation of Mission
NewEnergy;
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(3)
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show
the utmost good faith in relation to the Business and Mission
NewEnergy;
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(4)
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obey
all reasonable and lawful directions of the
Board;
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(5)
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comply
with all relevant legislation including the Listing Rules and the Corporations Xxx 0000
(Cth);
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(6)
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carry
out the Duties to the best of his skill and ability and in any event to a
professional and competent standard;
and
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(7)
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participate
in any performance assessment process as required by the
Board.
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8.
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Remuneration
|
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8.1
|
In
consideration for the Executive carrying out the Duties, Mission NewEnergy
will pay or provide (as the case may be) to the Executive the Remuneration
specified in Item 4 of the
Schedule.
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8.2
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Subject
to Mission NewEnergy' prior approval, the Salary may be taken as a
combination of
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(1)
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cash
salary;
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(2)
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benefits
granted to the Executive pursuant to clause 8,5;
and
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(3)
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any
additional superannuation contributions the Executive chooses to make
(subject to any age-based limits)
|
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8.3
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Mission
NewEnergy will pay the Executive 1/12th of the Remuneration less tax each
month in arrears:
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(1)
|
in
respect of the cash salary component of the Salary net of tax, by direct
deposit into a bank account nominated by the
Executive;
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(2)
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in
respect of other components of the Salary, in accordance with the polices
of Mission NewEnergy; and
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(3)
|
in
respect of the superannuation component of the Remuneration, by direct
deposit to the superannuation fund nominated by the
Executive.
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8.4
|
Mission
NewEnergy will review the Remuneration annually on or before 1 November
each year (Annual Salary
Review). The first Annual Salary Review will take place
on or around 1 November 2009. In undertaking the Annual Salary
Review Mission NewEnergy may take into account all circumstances that it
considers relevant, including but not limited to the performance of the
Executive, the performance of Mission NewEnergy, the prevailing economic
conditions and Mission NewEnergy' business requirements and capacity to
pay. Changes will be made to the Remuneration at Mission
NewEnergy' absolute discretion.
|
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8.5
|
The
Executive may make a written request, during the Term, to salary sacrifice
a component of the Remuneration. Mission NewEnergy will agree
to any reasonable salary sacrifice request proposed by the
Executive. The cost of any fringe benefits tax applicable is
included in the Remuneration.
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9.
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Expenses
|
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9.1
|
Subject
to this clause, Mission NewEnergy will reimburse the Executive, in
accordance with Mission NewEnergy' expense reimbursement policy, as it
exists from time to time or otherwise as agreed, for all reasonable
out-of-pocket expenses properly incurred by the Executive in carrying out
the Duties.
|
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9.2
|
Without
limiting clause 9.1, Mission NewEnergy will reimburse the Executive for
all accommodation and expenses incurred by the Executive in undertaking
travel on behalf of Mission NewEnergy or any Related Body Corporate of
Mission NewEnergy, in accordance with clause
5.2.
|
|
9.3
|
The
Executive must provide satisfactory proof to Mission NewEnergy of
expenditure incurred in accordance with clause 9.1 if requested by Mission
NewEnergy according to Mission NewEnergy' policy from time to
time.
|
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10.
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Period
of service and leave
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10.1
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Personal
leave
|
|
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(1)
|
The
Executive is entitled to 10 days paid personal leave per
annum. The Executive may take personal leave in accordance with
Mission NewEnergy' personal leave policy, as it exists from time to
time.
|
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(2)
|
Personal
leave accrues on a pro-rata basis and unused personal leave accumulates
from year to year.
|
|
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(3)
|
Untaken
personal leave will not be paid out upon the termination of the
Executive's employment.
|
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10.2
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Annual
leave
|
|
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(1)
|
The
Executive is entitled to annual leave of 20 working days per
annum. Annual leave will be taken at a time or times agreed
with Mission NewEnergy.
|
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(2)
|
In
the absence of agreement, annual leave will be taken at a time or times
directed by Mission NewEnergy on expiry of at least 2 weeks' written
notice.
|
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(3)
|
The
Executive will not be entitled to annual leave
loading.
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(4)
|
Accrued
but untaken annual leave will be paid out upon the termination of the
Executive's employment.
|
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11.
|
Mission
NewEnergy directions
|
|
11.1
|
Without
limiting the directions that Mission NewEnergy may lawfully give to the
Executive, Mission NewEnergy may at any time direct the Executive without
loss of Salary to:
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|
|
(1)
|
not
attend Mission NewEnergy' premises or premises at which any part of the
Business is conducted;
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|
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(2)
|
not
perform all or part of the Duties;
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(3)
|
cease
all contact and/or communication with clients, customers, suppliers,
employees or contractors of Mission NewEnergy, or certain of them;
and
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(4)
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not
use the Property of Mission
NewEnergy.
|
|
12.
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Confidential
Information
|
|
12.1
|
The
Executive must during the employment and after termination of the
employment for any reason:
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|
|
(1)
|
take
all precautions necessary to prevent disclosure of any of the Confidential
Information;
|
|
|
(2)
|
not
use or attempt to use any of the Confidential Information in any manner
which may injure or cause loss either directly or indirectly to Mission
NewEnergy or any Related Body Corporate or which may be likely to do
so;
|
|
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(3)
|
not
disclose any Confidential Information to any person other than as directed
by Mission NewEnergy;
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(4)
|
not
use any Confidential Information for the Executive's own benefit or the
benefit of any other person; and
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(5)
|
use
the Confidential Information solely in accordance with this
Agreement.
|
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12.2
|
This
clause does not apply to any Confidential Information
that:
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|
|
(1)
|
is
publicly available at the Commencement
Date;
|
|
|
(2)
|
becomes
publicly available during the Executive's employment or after the
termination of the Executive's employment without breach of this Agreement
by the Executive;
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(3)
|
was
already in the Executive's possession (as evidenced by written records) at
the Commencement Date; or
|
|
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(4)
|
the
Executive is obliged by law to
disclose.
|
|
12.3
|
If
the Executive is obliged by law to disclose any Confidential Information
the Executive must immediately notify Mission NewEnergy of the actual or
anticipated requirement and use all lawful means to delay and withhold
disclosure until Mission NewEnergy has had a reasonable opportunity to
oppose disclosure by lawful means.
|
|
13.
|
Intellectual
property
|
|
13.1
|
The
Executive assigns to Mission NewEnergy all existing and future rights or
interests in:
|
|
|
(1)
|
all
inventions, discoveries, novel designs, whether or not registrable as
designs under the Design
Xxx 0000 (Cth), as patents under the Patents Xxx 0000 (Cth)
and trade marks under the Trade Xxxx Act 1995
(Cth), and
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|
|
(2)
|
the
entire copyright in all Works,
|
created
by the Executive, either solely or jointly with others, during the
Term.
|
13.2
|
The
Executive agrees to provide all information relevant to such rights or
interests to Mission NewEnergy and to take whatever steps are necessary,
during and after his employment with Mission NewEnergy ceases for any
reason to enable Mission NewEnergy to secure ownership of the rights in
the Intellectual Property referred to in clause 13.1. Mission
NewEnergy will reimburse the Executive for reasonable costs incurred by
the Executive in complying with this obligation after his employment with
Mission NewEnergy ceases.
|
|
14.
|
Moral
Rights
|
|
14.1
|
The
Executive consents to Mission NewEnergy, its employees, servants, agents,
licensees and assigns doing any acts or making any omissions that
constitute an infringement of the Executive's Moral Rights in any Works
made by the Executive, in the course of the Executive's employment with
Mission NewEnergy, including:
|
|
|
(1)
|
not
naming the Executive as the author of a
Work.
|
|
|
(2)
|
naming
Mission NewEnergy or some other person as the author of a
Work;
|
|
|
(3)
|
amending
or modifying (whether by changing, adding to or deleting/removing) any
part of a Work but only if the Executive is not named as the author of the
amended or modified Work,
|
whether
any such acts or omissions occur before, on or after the date of this
Agreement.
|
14.2
|
The
Executive acknowledges that consent to this clause is genuine, is given
without duress of any kind and that the Executive has been given the
opportunity to seek legal advice on the effect of this
clause.
|
|
15.
|
Termination
|
|
15.1
|
Termination for
cause
|
|
|
(1)
|
At
any time during the Term, Mission NewEnergy may terminate the Executive's
employment immediately without notice and without payment in lieu of
notice if the Executive:
|
|
|
(a)
|
is
guilty of, charged with or under investigation for, any criminal or
indictable offence or commits any act of dishonesty in relation to the
affairs of Mission NewEnergy;
|
|
|
(b)
|
is
disqualified from holding office under the Corporations Xxx 0000
(Cth);
|
|
|
(c)
|
is
under investigation in relation to any offence under the Corporations Xxx 0000
(Cth);
|
|
|
(d)
|
has
breached any law relating to the performance of the Executive's duties
under this Agreement including without limitation any law relating to
discrimination, harassment or equal opportunity in an employment
context;
|
|
|
(e)
|
commits
any serious breach of faith, or act of serious neglect or default or
wilful disregard of directions or serious professional misconduct or gross
misconduct or wilful disobedience;
|
|
|
(f)
|
is
in serious and fundamental breach of this Agreement and such breach cannot
be remedied or it can be remedied but, after being directed in writing by
Mission NewEnergy to remedy the breach, the Executive fails to do so
within 14 days after the giving of the direction;
or
|
|
|
(g)
|
performs
any act or is guilty of any omission, whether or not in the course of
performing the Duties, the likely result of which is that Mission
NewEnergy, a Related Body Corporate or the Business or a material part of
the Business will be brought into
disrepute.
|
|
|
(2)
|
At
any time, the Executive may terminate the Executive's employment
immediately without notice if Mission NewEnergy fails to pay the
Remuneration due to the Executive pursuant to clause 8 within 30 days of
it becoming payable.
|
|
15.2
|
Termination by notice by
Mission NewEnergy
|
|
|
(1)
|
Mission
NewEnergy may terminate the Executive's employment and this Agreement at
any time during the Term by giving the Executive 2 months' written notice
and a payment to the Executive equivalent to 2 months' of the
Salary.
|
|
|
(2)
|
Instead
of giving the notice under clause 15.2(1), Mission NewEnergy may terminate
the Executive's employment by paying Salary instead of the notice or a
combination of notice and payment of Salary instead of the notice period
under clause 15.2(1).
|
|
|
(3)
|
If
the Executive's employment is terminated under this clause 15.2, the
Executive has no claim against Mission NewEnergy for compensation or
damages in respect of the termination other than the amounts prescribed by
this clause 15.2.
|
|
15.3
|
Termination by notice by the
Executive
|
The
Executive may resign from his employment by giving Mission NewEnergy 2 months'
written notice.
|
15.4
|
Termination by the effluxion of
time
|
|
|
(1)
|
Notwithstanding
clauses 15.1, 15.2 or 15.3 of this Agreement, the Executive's employment
with Mission NewEnergy will terminate at close of business on the
Expiration Date by the effluxion of
time.
|
|
|
(2)
|
If
this Agreement, and the Executive's employment with Mission NewEnergy,
terminate due to the effluxion of time then the Executive is not entitled
to notice, payment in lieu of notice or any other payment in lieu of any
other amount, except payment in lieu of any accrued but untaken
entitlements in accordance with clause
10.2.
|
|
15.5
|
Material change in terms and
conditions
|
|
|
(1)
|
If
there is a material adverse change in the Executive's position,
remuneration, benefits, responsibilities or Duties (as set out in the job
description or as otherwise agreed), including, but not limited to, a
material adverse change in the Executive's direct reporting line or
reporting structure (Substantive Change
Event), as a result of which the Executive's employment is
terminated, the Executive will be entitled to payment of an amount
equivalent to the Salary to the end of the Term or the Salary payable for
a period of 12 months (whichever is the lesser) (Substantive Change Severance
Pay).
|
|
|
(2)
|
In
consideration of the Substantive Change Severance Pay, the Executive will
execute the Deed of Release described in clause
15.6.
|
|
|
(3)
|
The
Executive will receive the Substantive Change Severance Pay in lump sum
form, or as otherwise agreed between the parties, subject to any
deductions for withholding any applicable employment taxes within 2
Business Days of signing the Deed of
Release.
|
|
|
(4)
|
The
Substantive Change Severance Pay includes any performance based bonuses or
an entitlement that may be due and owing at the completion of the
Transition Period.
|
|
|
(5)
|
The
Executive may elect to receive the Substantive Change Severance Pay in a
packaged form as agreed with Mission NewEnergy. If the
Substantive Change Severance Pay is packaged, Mission NewEnergy will
continue to be responsible for any and all taxes and government and
regulatory charges and superannuation which would normally be paid by an
employer in respect of payment of such Substantive Change Severance Pay to
an employee.
|
Executive
Service Agreement
9
|
15.6
|
Mission NewEnergy Deed of
Release
|
As a
condition of receiving the Substantive Change Severance Pay, the Executive will
execute in a form acceptable to Mission NewEnergy (or its successor) at its
complete discretion, a full and complete Deed of Release of any and all claims
against Mission NewEnergy and its officers, agents, directors, attorneys,
insurers, successors in interest and employees, arising from or in any way
related to the Executive's employment with Mission NewEnergy or the termination
thereof.
|
16.
|
Return
of Property of Mission NewEnergy
|
The
Executive must, upon the termination of the Executive's employment or if
requested by Mission NewEnergy, deliver to Mission NewEnergy all Confidential
Information and other Property of Mission NewEnergy, which is in the possession
or custody or under the control of the Executive.
|
17.
|
Compliance
with obligations on Termination
|
Termination
of the Executive's employment does not relieve the Executive from the
Executive's obligations under clauses 12, 13, 14, 16, 18 and 19 of this
Agreement.
|
18.
|
Resignation
as an officer
|
|
18.1
|
On
the Termination Date, the Executive is deemed to have automatically
resigned from and vacated any office the Executive holds as a director,
secretary or public officer of Mission NewEnergy or any Related Body
Corporate of Mission NewEnergy that the Executive held in connection with
the Executive's employment with Mission
NewEnergy.
|
|
18.2
|
The
Executive is not entitled to compensation for loss of any such
office. The Executive will take all steps necessary to resign
from any such office. If the Executive fails to do so the
Executive irrevocably authorises the Board's nominee to do all things
necessary to give effect to the Executive's
resignation.
|
|
19.
|
Non-competition
|
|
19.1
|
In
consideration of the Remuneration, the Executive must not in the Restraint
Area, during the operation of this Agreement and for the Restraint Period,
without the written permission of Mission NewEnergy either directly or
indirectly be engaged or concerned or interested in any Competing
Business.
|
|
19.2
|
The
Agreement by the Executive in clause 19.1 applies to the Executive
acting:
|
|
|
(1)
|
either
alone or in partnership or association with another person,
and
|
|
|
(2)
|
as
principal, agent, consultant, adviser, director, officer or employee in a
management position.
|
|
19.3
|
This
clause does not exclude the Executive from owning marketable securities of
a corporation or trust which is listed on a recognised Stock Exchange in
Australia, Malaysia or elsewhere provided that the Executive holds not
more than 5% of the total marketable securities with a corporation or
trust.
|
|
19.4
|
Clause
19.1 and 19.2 have affect as comprising each of the separate provisions
which results from a capacity referred to in clause 19.2 and an area, a
period and a category of conduct referred to in clause
19.1. Each of these separate provisions operates concurrently
and independently.
|
Executive
Service Agreement
10
|
19.5
|
If
any separate provision referred to in clauses 19.1 and 19.2 is
unenforceable, illegal or void, that provision is severed and the other
provisions remain in force. The Executive acknowledges that
each of those separate provisions is a fair and reasonable restraint of
trade.
|
|
20.
|
Conflicting
obligations
|
|
20.1
|
The
Executive certifies and warrants that the Executive, at the time of
signing this Agreement, has no interests or obligations that are
inconsistent with or that would prevent, limit or affect the Executive
complying with any of the Executive's obligations under this
Agreement.
|
|
20.2
|
The
Executive agrees to notify Mission NewEnergy immediately if any interest
or obligation arises which may be inconsistent with the Executive's
obligations under this Agreement.
|
|
21.
|
Notices
|
|
21.1
|
Notices
to be given by a party must be in writing
and:
|
|
|
(1)
|
in
the case of notice to the Executive - must be delivered to the Executive
personally or dispatched to the Executive at his location at the time of
giving the notice, or, if that location is unknown, at the Executive's
residential address as specified at the beginning of this Agreement or
such other address notified by him to Mission NewEnergy,
and
|
|
|
(2)
|
in
the case of notice to Mission NewEnergy - must be delivered or addressed
to the Board's nominee at the address of Mission NewEnergy specified at
the beginning of this Agreement or such other address notified to the
Executive.
|
|
22.
|
General
|
|
22.1
|
No
waiver
|
The
failure, delay, relaxation or indulgence on the part of a party in exercising
any power or right conferred upon that party by this Agreement does not operate
as a waiver of that power or right, nor does any single exercise of a power or
right preclude any other or further exercise of any other power or right under
this Agreement.
|
22.2
|
Governing law and
jurisdiction
|
This
Agreement is to be governed by and construed in accordance with the laws of
Western Australia and the parties agree to submit to the jurisdiction of the
courts of that jurisdiction.
|
22.3
|
Entire
understanding
|
|
|
(1)
|
Subject
to its terms, this Agreement:
|
|
|
(a)
|
contains
the entire agreement and understanding between the parties on everything
connected with the subject matter of this Agreement,
and
|
|
|
(b)
|
supersedes
and merges any prior agreement or understanding on anything connected with
that subject matter.
|
|
|
(2)
|
Each
party has entered into this Agreement without relying on any
representation by any other party or person purporting to represent that
party.
|
Executive
Service Agreement
11
|
22.4
|
Acknowledgment
|
The
Executive acknowledges that the Executive entered into this Agreement without
duress after having had the opportunity to take independent expert advice on its
terms and their effect.
|
22.5
|
Variation
|
An
amendment or variation to this Agreement is not effective unless it is in
writing and signed by both parties.
|
22.6
|
Severability
|
If
anything in this Agreement is unenforceable, illegal or void then it is severed
and the rest of this Agreement remains in force.
|
22.7
|
Stamp duty, costs and
expenses
|
|
|
(1)
|
Mission
NewEnergy is responsible for any stamp duty payable on this
agreement.
|
|
|
(2)
|
All
of the Executive's costs and expenses (including legal costs and expenses)
in negotiation, preparation and execution of this agreement must be paid
by Mission NewEnergy.
|
Executive
Service Agreement
12
|
Executed
as an Agreement.
|
||
|
Executed
by Mission
NewEnergy
Ltd ACN 117 065 719 in
accordance
with
section 127 of the Corporations
Xxx
0000:
|
||
|
/s/ Xxxxxx Xxxxxxxxxx
|
||
|
Director/company
secretary
|
Director
|
|
|
Xxxxxx Xxxxxxxxxx
|
||
|
Name
of director/company secretary
(BLOCK
LETTERS)
Signed
by Xxxxx Xxxxxx in
the
presence
of:
|
Name
of director
(BLOCK
LETTERS)
|
|
|
/s/ Xxxxxx Xxxxxx
|
/s/ Xxxxx Xxxxxx
|
|
|
Signature
of witness
|
||
|
Xxxxxx Xxxxxx
|
||
|
Name
of witness (BLOCK LETTERS)
|
||
|
Xxxxx 0, 00 Xx Xxxxxxx Xxxxxxx,
Xxxxx
|
||
|
Address
of witness
|
||
Executive
Service Agreement
13
Schedule
|
Item
1
|
Commencement
Date
|
|
|
13
October 2008.
|
|
Item
2
|
Expiration
Date
|
|
|
2
years after the Commencement Date.
|
|
Item
3
|
Duties
|
|
|
(a)
|
Specific
Duties
|
|
|
(i)
|
Oversee
the capital raising activities of the
Group
|
|
|
(ii)
|
Manager
Investor Relations for the Group
|
|
|
(iii)
|
Develop
and implement the Capital Markets Strategies for the
Group
|
|
|
(iv)
|
Oversee
the Merger and Acquisition activities of the
Group
|
|
|
(v)
|
Generate
and develop new business
opportunities
|
|
|
(b)
|
General
Duties
|
|
|
The
Executive must:
|
|
|
(i)
|
faithfully
and diligently perform the duties assigned to him by the Board or its
nominee to the best of the Executive's ability and unless prevented by ill
health or other incapacity devote the whole of the Executive's time and
attention during normal working hours to the
Business;
|
|
|
(ii)
|
do
all that is reasonable to promote, develop and extend the
Business;
|
|
|
(iii)
|
act
at all times in Mission NewEnergy' best
interests;
|
|
|
(iv)
|
comply
with lawful directions given to the Executive by the Board or its
nominee;
|
|
|
(v)
|
use
the Executive's best endeavours to comply with all relevant laws and
rules, including any charter of values and/or code of conduct of Mission
NewEnergy as published from time to time, relating to the conduct of the
Business including its policies and procedures as notified to the
Executive from time to time;
|
|
|
(vi)
|
perform
such other or additional duties and responsibilities which, consistent
with the Executive's status and authority, the Board or its nominee
reasonably assign to the Executive from time to time;
and
|
|
|
(vii)
|
work
with the Board or its nominee to ensure Mission NewEnergy
profitability.
|
|
Item
4
|
Remuneration
|
|
|
(a)
|
Salary
|
The
Executive's salary is $200,000 per annum, exclusive of
Superannuation.
Executive
Service Agreement
14
|
|
(b)
|
Superannuation
|
Superannuation
contributions made on the Executive's behalf to a complying superannuation fund
of the Executive's choice at the rate required under the Superannuation Guarantee
(Administration) Xxx 0000 (Cth) as calculated on the Salary.
Executive
Service Agreement
15
