**EXHIBIT 4.15**

 

**THIS EXCHANGEAND COMPENSATION DEFERRAL AGREEMENT** (the “***Agreement***”) is made as of the 30th of November,2015 (the “***Effective Date***”), by and between BlueNRGY Group Limited, an Australian corporation (the “***Company***”),and William C. Morro (“***Executive***”).

  

**WHEREAS**,Executive was appointed as Managing Director of the Company effective January 27, 2015 (the “***Commencement Date***”)with a base compensation of US$350,000 per annum (the “***Base Compensation***”; and

 

**WHEREAS,**the Company has had insufficient funds to pay any of Executive’s Base Compensation through the Effective Date and does notforesee being able to do so prior to December 31, 2015; and

 

**WHEREAS,**in light of the Company’s inability to pay Executive’s Base Compensation, Executive has accrued unpaid base compensationfrom the Commencement Date through June 30, 2015 of $148,655.91 (the “***H-1 Compensation***”) and has accruedor will accrue additional unpaid base compensation of $87,500 for each of the calendar quarters ended September 30, 2015 and December31, 2015 (respectively the “***Q-3 Compensation***” and “***Q-4 Compensation***”); and

 

**WHEREAS,**Executive is willing to exchange 100% of the H-1 Compensation plus 50% of the Q-3 Compensation (together being $192,405.91 andreferred to hereinafter as the “***Exchange Amount***”) for Company ordinary shares, subject to the terms hereofand to defer the payment of a remainder of his base salary for calendar year 2015 (being $131,250 and referred to hereinafter asthe “***Deferred Amount***”) until a date in calendar year 2016 that the Company is more likely to be in aposition to pay Executive’s accrued base compensation; and

 

**WHEREAS,**theCompany is willing to exchange any amount of Executive’s unpaid base compensation accrued during the 2015 calendar year forCompany ordinary shares at a price of US$0.03785 per ordinary share (the “***Exchange Price***”) and wouldbenefit from the deferral of the remainder of Executive’s calendar year 2015 base salary; and

 

**WHEREAS**,****the Company’s Board of Directors has duly authorized the issuance to Executive of a number of ordinary shares (the “***ExchangeSecurities***”) as determined by the following formula:

 

 

* subject to proportionaladjustment for share splits and consolidations

 

**WHEREAS**,the exchange of the Exchange Amount for the Exchange Securities would be made in reliance upon an exemption from registration asset forth in Section 3.3 of this Agreement.

 

**NOW, THEREFORE,**for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and in consideration ofthe premises and the mutual agreements, representations and warranties, provisions and covenants contained herein, the partieshereto, intending to be legally bound hereby, agree as follows:

 

1.      Exchange.On December 1, 2015 (the “***Exchange Date***”), subject to the terms and conditions of this Agreement, theExecutive shall exchange his right to receive base compensation equal to the Exchange Amount for the Exchange Securities and,in reliance upon an applicable exemption (as set forth in Section 3.3 hereof) from registration provided under the SecuritiesAct of 1933, as amended (the “***Securities Act***”), the Company shall issue the Exchange Securities. Onthe Exchange Date, the following transactions shall occur (such transactions in this Section 1, the “***Exchange***”):

 

(a)      Upon consummationof the Exchange, an amount of the Company’s accrued base compensation obligation to Executive equal to the Exchange Amountshall be deemed to be satisfied and extinguished, subject to the provisions of Section 1(b) below.

 

 

(b)      In recognitionof the fact that Executive will be obligated to pay taxes on the value of the Exchange Securities received in lieu of cash compensationand will not have funds to do so, the Company shall, prior to April 2016, pay to Executive a cash amount (the “***TaxGross-Up***”) calculated as follows:

 

 

For purposes hereof, the Executive TaxRate shall be calculated based on the highest combined marginal Illinois (5.0%) and U.S. federal (39.6%) tax rate for individuals,that is, 42.6%.

 

(c)      On the ExchangeDate, or as soon thereafter as practicable, the Company shall cause the transfer agent for the Company ordinary shares (the “***TransferAgent***”) to issue the Exchange Securities to the Executive.

 

(d)      The Company andthe Executive shall execute and/or deliver such other documents and agreements as are customary and reasonably necessary to effectuatethe Exchange.

 

(e)      The Company shallpay all applicable payroll and similar taxes that it would have been obligated to pay if the Exchange Amount were paid to Executiveas a cash payroll payment in the ordinary course.

  

2.      Deferralof Compensation.

 

2.1      Executive herebyagrees that the Company may defer payment of his Base Compensation in an amount equal to the Deferred Amount until the earlierof March 31, 2016 or such date in calendar year 2016 as the Company’s Board of Directors determines, in its sole discretion,that the Company is able to pay the Deferred Amount in cash without jeopardizing Company operations.

 

2.2      Until suchtime as the Company has actually paid the Deferred Amount to Executive, Executive shall have the right to elect to exchange allor any part of the Deferred Amount for additional Exchange Securities at the Exchange Price (adjusted proportionally for stocksplits or consolidations) in one or multiple exchanges. Executive may exercise such exchange right by giving written notice tothe Company.

 

2.3      Any exchangeof the Deferred Amount (or fraction thereof) for additional Exchange Securities shall be handled in a manner consistent with theexchange process set forth in Section 1 hereof, except that no Tax Gross-up shall apply or be paid to Executive in connection withan exchange of the Deferred Amount.

 

2.3      Upon consummationof any exchange of the Deferred Amount or any fraction thereof, the corresponding amount of Company’s accrued Base Compensationobligation to Executive shall be deemed to be satisfied and extinguished.

 

3.      Representationsand Warranties of the Company. The Company hereby represents and warrants to Executive that:

 

3.1      Organization,Good Standing and Qualification. The Company is duly qualified to transact business generally and to effect the Exchange.

 

3.2      Authorization.All corporate action on the part of the Company, its Administrators, officers, directors and stockholders necessary for the authorization,execution and delivery of this Agreement and the performance of all obligations of the Company hereunder and thereunder, including,without limitation, the authorization of the Exchange, and the issuance (or reservation for issuance) of the Exchange Securitiesshall have been taken on or prior to the Exchange Date.

 

3.3      SecuritiesLaw Exemptions. Assuming the accuracy of the representations and warranties of the Executive contained herein, the offer andissuance by the Company of the Exchange Securities are exempt from registration under the Securities Act and all applicable statesecurities laws. The offer and issuance of the Exchange Securities are exempt from registration under the Securities Act pursuantto the exemption provided by Section 3(a)(9) or other applicable exemption thereof.

 

 

3.4      Valid Issuanceof the Securities. The Exchange Securities when issued and delivered in accordance with the terms of this Agreement, for theconsideration expressed herein, will be duly and validly issued, fully paid and non-assessable.

 

3.5      No ConsiderationPaid. No commission or other remuneration has been paid by the Company for soliciting the exchange of the Exchange Amount orthe Deferred Amount of Executive’s Base Compensation as contemplated hereby.

 

4.      RegistrationRights

 

4.1      UnlessExecutive is otherwise permitted to sell the Exchange Securities pursuant to Rule 144 or any successor rule or another applicableexemption, Executive shall be entitled to the same registration rights for the Exchange Securities as purchasers of Securitiesin the Offering referenced in the Company’s November 12, 2015 filing with the U.S. Securities and Exchange Commission onForm 6-K.

 

5.      Representationsand Warranties of the Executive. Executive hereby represents, warrants and covenants that:

 

5.1      Organization;Authority. Executive has the power and authority to enter into and to consummate the transactions contemplated hereby and otherwiseto carry out its obligations hereunder. This Agreement has been duly executed by Executive, and when delivered by Executive inaccordance with the terms hereof, will constitute the valid and legally binding obligation of Executive.

 

5.2      RestrictedSecurities. Executive understands that the Exchange Securities are “restricted securities” as that term is usedin Rule 144(a)(3) and have not been registered under the Securities Act or any applicable state securities law.

 

5.3      Executive Status.At the time the Executive was offered the Exchange Securities, it was, and as of the date hereof it is either: (i) an “accreditedinvestor” as defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualifiedinstitutional buyer” as defined in Rule 144A(a) under the Securities Act.

 

5.4      Experienceof the Executive. The Executive, either alone or together with its representatives, has such knowledge, sophistication andexperience in business and financial matters so as to be capable of evaluating the merits and risks of the investment in the ExchangeSecurities, and has so evaluated the merits and risks of such investment. The Executive is able to bear the economic risk of aninvestment in the Exchange Securities and, at the present time, is able to afford a complete loss of such investment.

 

5.5      Relianceon Exemptions. The Executive understands that the Exchange Securities are being offered and issued to it in reliance on specificexemptions from the registration requirements of United States federal and state securities laws and the Company and its outsidecounsel and the Company’s transfer agent are authorized to rely upon the truth and accuracy of, and the Executive’scompliance with, the representations, warranties, agreements, acknowledgments and understandings of the Executive set forth hereinin order to determine the availability of such exemptions, the eligibility of the Executive to acquire the Exchange Securitiesand in connection with the other matters set forth herein.

 

5.6 Rule 144 Representations.

 

(a)      No commissionor other remuneration has been paid by the Executive to the Company in connection with the exchange of the Exchange Amount or willbe paid in connection with the exchange of the Deferred Amount for the Exchange Securities as contemplated hereby.

 

6.      IntentionallyBlank.

 

 

 

7.      Indemnification.

 

7.1      Indemnificationby the Company. The Company agrees to indemnify, hold harmless, reimburse and defend the Executive and his agents and affiliatesagainst any claim, cost, expense, liability, obligation, loss or damage (including reasonable legal fees) of any nature, incurredby or imposed upon the Executive or any such person which results, arises out of or is based upon (i) any material misrepresentationby Company or breach of any representation or warranty by Company in this Agreement or in any exhibits or schedules attached hereto,or other agreement delivered pursuant hereto; or (ii) after any applicable notice and/or cure periods, any breach or default inperformance by the Company of any covenant or undertaking to be performed by the Company hereunder, or any other agreement enteredinto by the Company and Executive relating hereto.

 

7.2      Indemnificationby the Executive. The Executive agrees to indemnify, hold harmless, reimburse and defend the Company and any of its officers,directors, agents, affiliates, members, managers, control persons, and principal shareholders, against any claim, cost, expense,liability, obligation, loss or damage of any nature (including without limitation claims relating to the failure to include arestrictive legend on the Exchange Securities, if applicable) and reasonable legal fees related thereto, incurred by or imposedupon the Company or any such person which results, arises out of or is based upon (i) any material misrepresentation or misstatementsof facts or the delivery of misleading or false information by the Executive or breach of any representation or warranty by theExecutive in this Agreement or other agreement delivered pursuant hereto; or (ii) after any applicable notice and/or cure periods,any breach or default in performance by the Executive of any covenant or undertaking to be performed by the Executive hereunder,or any other agreement entered into by the Company and the Executive relating hereto.

 

8.      Miscellaneous

 

8.1      Successorsand Assigns. Except as otherwise provided herein, the terms and conditions of this Agreement shall inure to the benefit ofand be binding upon the parties hereto and the respective successors and assigns of the parties. Nothing in this Agreement, expressor implied, is intended to confer upon any party, other than the parties hereto or their respective successors and assigns, anyrights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement.

 

8.2      Governing Law;Jurisdiction; Jury Trial. All questions concerning the construction, validity, enforcement and interpretation of this Agreementshall be governed by the laws of Australia, without giving effect to any choice of law or conflict of law provision or rule thatwould cause the application of the laws of any jurisdictions other than Australia.

 

8.3      Titles andSubtitles. The titles and subtitles used in this Agreement are used for convenience only and are not to be considered in construingor interpreting this Agreement.

 

8.4      Notices.All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal deliveryto the party to be notified, (b) when sent by confirmed telex or facsimile if sent during normal business hours of the recipient;if not, then on the next business day, (c) five (5) business days after having been sent by registered or certified mail, returnreceipt requested, postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier, specifyingnext day delivery, with written verification of receipt. All communications shall be sent to (a) in the case of the Company toBlueNRGY Group Limited, 11th Floor, 32 Martin Place, Sydney, NSW 2000, Australia, Attention: Corporate Secretary e-mail:Richard.pillinger@bluenrgy.com or (b) in the case of the Executive, to the address as set forth on the signature page or exhibitpages hereof or, in either case, at such other address as such party may designate by TEN (10) business days advance written noticeto the other parties hereto.

 

8.5      *IntentionallyBlank.*

 

8.6      Amendmentsand Waivers. Any term of this Agreement may be amended and the observance of any term of this Agreement may be waived (eithergenerally or in a particular instance and either retroactively or prospectively), only with the written consent of the Companyand the Executive.

 

 

8.7      Severability.If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision shall be excludedfrom this Agreement and the balance of the Agreement shall be interpreted as if such provision were so excluded and shall be enforceablein accordance with its terms.

 

8.8      Entire Agreement.This Agreement represents the entire agreement and understandings between the parties concerning the Exchange and the other mattersdescribed herein and therein and supersedes and replaces any and all prior agreements and understandings solely with respect tothe subject matter hereof and thereof.

 

8.9      Counterparts.This Agreement may be executed in counterparts, (including facsimile or .pdf counterparts transmitted digitally), each of whichshall be deemed an original, but all of which together shall constitute one and the same instrument.

 

8.10    Interpretation.Unless the context of this Agreement clearly requires otherwise, (a) references to the plural include the singular, the singularthe plural, the part the whole, (b) references to any gender include all genders, (c) “including” has the inclusivemeaning frequently identified with the phrase “but not limited to” and (d) references to “hereunder” or“herein” relate to this Agreement.

 

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