Exhibit 10.1
DATED 6 MARCH 2002
FU CHEONG INTERNATIONAL HOLDINGS LIMITED
and
HO WING CHEONG
SFRVICE AGREEMENT
INDEX
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Parties
Recitals
Clause No.
1. Interpretation ........................................................ 1
2. Appointment ........................................................... 2
3. Duties ................................................................ 3
4. Outside Interests ..................................................... 4
5. Remuneration and Expenses ............................................. 4
6. Sick Leave Entitlements ............................................... 5
7. Retirement Fund Scheme Participation .................................. 6
8. Holidays .............................................................. 6
9. Confidentiality ....................................................... 7
10. Copyright and Invention ............................................... 7
11. Restrictive Covenants ................................................. 8
12. Termination ........................................................... 11
13. Effect of Termination ................................................. 12
14. Indemnity ............................................................. 12
15. Effect of Reconstruction .............................................. 13
16. Entire Agreement ...................................................... 13
17. Prior Agreements ...................................................... 13
18. Service of Notice etc ................................................. 13
19. Assignment ............................................................ 14
20. Proper Law and Forum .................................................. 14
2
TELLS AGREEMEENT is made on 6 March 2002
BETWEEN
(1) FU CHEONG INTERNATIONAL HOLDINGS LIMITED, a company incorporated under
the Companies Law (Revised) of the Cayman Islands as an exempted company
the registered office of which is at Century Yard, Cricket Square,
▇▇▇▇▇▇▇▇ Drive,, P.O. Box 2681GT, ▇▇▇▇▇▇ To Am, Grand Cayman, British
West Indies and whose address for service is at Unit 2, 34th Floor,
Cable TV Tower, 9 ▇▇▇ ▇▇▇▇▇ Road, Tsuen Wari, New Territories, Hong Kong
(the "Company"); and
(2) HO WING CHEONG of ▇▇▇▇ ▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇▇, Shatin, New
Territories, Hong Kong (the "Executive").
RECITAL
The Company has agreed to employ and the Executive has agreed to serve
the Company as an executive director of the Company on the terms and conditions
set out below.
NOW IT IS AGREED as further
1. INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires: "this
Agreement" means this Agreement as may from time to time be amended,
modified or supplemented pursuant to Clause 16.2;
"Associates"
shall have the meaning as defined in the Rules Governing the
Listing of Securities on The Stock Exchange of Hong Kong Limited;
"Board"
means the Board of Directors of the Company from time to time;
"Commencement Date"
means 1 August 2001;
"Group"
means the Company and any company which is for the, time being a
subsidiary or an Associate of the Company (excluding, except in
relation to Clause 11, the holding company of the Company and any
Associate of such holding company if the Company has an
attributable interest of less than 35 per cent. of the issued
share capital of such Associate);
"Hong Kong"
means the Hong Kong Special Administrative Region of the
People's Republic of China;
"Month"
means calendar month;
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"Salary"
means the salary payable to the Executive pursuant to Clause 5.1;
"Subsidiary"
shall have the meaning ascribed thereto in section 2 of the
Companies Ordinance, Chapter 32 of the laws of Hong Kong;
"Term"
means the period from the Commencement Date until its expiry or
termination pursuant to Clause 2 or 12;
"Working day"
means Monday to Saturday, a Saturday being reckoned as a half
working day, in each case except where such day falls on a
statutory holiday.
1.2 In this Agreement:
(a) references to Clauses and Sub-clauses in this Agreement are
respectively to clauses and sub-clauses of this Agreement;
(b) reference to any Ordinance, regulation or other statutory
provision includes reference to such Ordinance, regulation or
provision as may be modified, consolidated or reenacted from
time to time;
(c) unless the context otherwise requires, words denoting a singular
number include the plural and vice versa, words denoting one
gender include both genders and the neuter and words denoting a
person include a corporation, sole proprietorship, firm, joint
venture or syndicate and, in each case, vice versa; and
(d) the rule known as ejusdem genesis shall not apply, so that words
and phrases in general terms following or followed by specific
examples shall be construed in the widest possible sense and
shall not be construed as limited or related to the examples
given.
1.3 The headings in this Agreement are for ease of reference only and do not
form part of this Agreement.
2. APPOINTMENT
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2.1 The Company appoints the Executive and the Executive accepts his
appointment as an executive director of the Company with the duties
described in Clause 3 for an initial term of three years from the
Commencement ate and expiring on 31 July 2004 renewable automatically
for successive terms of one year each commencing from the day next after
the expiry of the then current term of the Executive's appointment,
unless terminated by not less than 3 months' notice in writing served by
either party expiring at the end of the initial term of the Executive's
appointment or at any time thereafter. The same terms as set out in this
Agreement shall mutatis mutandis apply to any renewed term of
appointment of the Executive, save as to the Salary, the applicable
amount of which shall be such as may be prevailing in the immediately
preceding term of this Agreement.
2.2 For the purposes only of section 6(2)(c) of the Employment Ordinance,
and subject to Clause 12.2, the "agreed period" during the initial term
and any renewed term of the Executive's appointment hereunder shall be
the unexpired period of the initial term and 3 months, respectively,
and, where such unexpired period comprises 7 days or less, 7 days.
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3. DUTIES
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3.1 The Executive shall during the Term:
(a) serve the Company in the capacity of a director of the Company
with such executive and management responsibilities and duties
with regard to the operations of the Group and the development
and expansion of its business - as the Board may reasonably
direct;
(b) unless prevented by ill health or engaged in businesses or
offices in which the Executive is permitted to engage under
Clause 4, devote a substantial part of his time, attention and
abilities during normal business hours and such additional hours
as may reasonably be requisite to administer, supervise and
manage the, business of the Group and use his, best endeavors to
promote the business interests and welfare of the Group and
manage and supervise the, business of the Group;
(e) perform all such duties as shall be reasonably required by the
Board and carry out all lawful and reasonable instructions of the
Board and according to the best of his skill and ability and in
compliance with all resolutions and regulations from time to time
passed or made by the Board; and
(d) at all times keep the Board promptly and fully informed of all
matters relating to or in connection with the performance and
exercise of his duties and powers under this Agreement.
3.2 The Executive shall, if and so long as he is required by the Company
and in consideration of the Salary but subject to the proviso in Clause
3.1, carry out the duties of his office on behalf of any Member of the
Group, act as director, officer or employee of any member of the Group
and carry out such duties attendant in any such appointment as if they
were duties to be performed by him on behalf of the Company under this
Agreement and, if so required by the Company, enter into such
secondment agreement for such purpose with other member of the Group on
the same terms as this Agreement mutatis mutandis (so far as applicable
and save as regards all entitlements to the Salary or other benefits
whatsoever, which shall not apply).
3.3. The Company may from time to time and at any time assign any title to
the Executive and any other duties to the Executive in addition to or
in substitution of any title then held by the Executive (including, for
the avoidance of doubt, that of a director) and the duties (if any)
then assigned to him.
3.4 The Executive shall work in any place in Hong Kong or any part of the
world which the Board may require, for the proper performance and
exercise of his duties and powers under this Agreement
4. OUTSIDE INTERESTS
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4.1 The Executive shall not at any time during the Term without the prior
written consent of the Board be or become a director of any company
(other than the Company or any other member of the Group) or be engaged
concerned or interested directly or indirectly in any other business,
trade or occupation.
4.2 Nothing in this Agreement shall prevent the Executive from:
(a) being engaged, concerned or interested in any other business, trade or
occupation with the prior written consent of the Board (such consent
not to be unreasonably withheld). or which is disclosed in the
Prospectus (to the extent of the activities disclosed); or
(b) subject to the provisions of Clause 11.6(a) holding or being
beneficially interested in any class of securities in any company if
such class of securities is listed on a stock exchange and the relevant
company does not carry on any business, which competes in any way with
the business of the Group.
4.3 The following provisions shall apply in relation to any application for
consent under Clause 4.2(a);
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(a) the Executive shall furnish to the Board a detailed statement
of the exact nature of the business, trade or occupation in
which he wishes to engage, the exact nature of the duties and
obligations imposed on and the extent of commitment required
of or to be assumed by him and the amount of time that he
intends to devote and is likely to be devoted for such
purpose;
(b) if the Board is reasonably satisfied that the nature of the
business, trade or occupation in which the Executive wishes to
be engaged is unlikely to conflict with and that the time
likely to be devoted by the Executive for such business trade
or occupation is unlikely to adversely affect the business of
the Group, consent shall be given by it to the Executive for
his engagement in such business, trade or occupation;
(e) the Executive shall (as a condition precedent to such consent)
furnish to the Board an undertaking that the matter
represented in the statement referred to in Clause 4.3(a) will
at all times during the Term remain correct and. accurate and
that he will not during the Term act in variance thereof.
5. REMUNERATION AND EXPENSFS
-------------------------
5.1 In consideration of the performance by the Executive of his duties
hereunder, the Company shall (subject to Clause 6.1) during the Term pay to the
Executive a Salary of HK$150,000 for each month of the Term together with an
additional payment equivalent to one-month salary payable in or around January
of each calendar year during the Term provided that if at the date of payment of
such sum the Executive shall be employed by the Company for less than twelve
(12) months, the amount of such payment shall be prorated accordingly subject to
such increase as the Board may, subject to compliance with the provisions of the
articles of association of the Company for the time being in force, determine
from time to time in its absolute discretion provided that such increase shall
not exceed the percentage stipulated under Clause 5.3.
5.2 The Salary shall be payable in arrears on or before the last calendar day of
every month during the Term or, if that is not a bank business day, on the
immediately preceding bank business day. Such payment date may be varied by the
Company from time to time but so that the Salary for a particular month shall
not be paid later than the last day of that month.
5.3 The amount of the Salary will riot be increased for periods prior to 31 July
2002 but will be reviewed by the Company in or around April of each year during
the Term. Any increase in Salary shall, unless specified by the Board, become
effective for all periods after April of the year in which it is notified to the
Executive. Such increase in Salary shall not exceed 15 percent per annum of the
amount of Salary paid during the previous 12 month period.
5.4 The Executive shall be entitled to a management bonus in respect of each
financial year of the Company after 31 December 2001 in an amount to be
determined by the Board in its absolute discretion, provided that the total
amount of bonuses payable to all the executive directors for the time being of
the Company shall not exceed five (5) percent. of the combined or, as the case
may be, consolidated audited net profit of the Group (after taxation and
minority interests and the payment of such bonuses but before extraordinary
items) for that financial year. Payment of such bonus shall be made on such date
as the Board may resolve. The Executive may not vote, on any resolution of the
Board regarding the amount of the management bonus payable to the executive
directors.
5.5 The Executive may, at the discretion of the Board, be granted share options
entitling the Executive to subscribe for shares in the Company under any share
option scheme from time to time adopted by the Company in accordance with the
terms and conditions of such share option scheme.
5.6 The Company shall pay to the Executive all reasonable expenses properly
incurred by the Executive in connection with the performance of the duties of
the Executive under this Agreement, and all reasonable expenses incurred by the
Executive for gifts, made to business associates or prospective business
associates of the Group, in each case subject to such expenses being evidenced
and vouched for in such manner as the Board may reasonably require.
5.7 In addition to the Salary, the Company shall also during the Term pay
to the Executive personal allowances of HK$90,000 per month.
6. SICK LEAVE ENTITLEMENTS
-----------------------
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6.1 The Executive shall be entitled to his full Salary (if any) during
periods of absence due to ill health or sickness properly vouched for
in accordance with the reasonable requirements of the Board provided
that the aggregate period of absence in any 12 month period does not
exceed 120 working days.
7. RETIREMFNT FUND SCHEME PARTICIPATION
------------------------------------
7.1 The Executive shall be entitled during the Term to participate in and
the Company shall procure that the Executive is offered participation
in the Company's retirement or provident fund scheme (if any, and/or
such other scheme as the same may from time to time be supplemental
thereto or for the replacement thereof). The terms on which
participation in such scheme (and/or such other scheme as aforesaid)
shall be offered to the Executive shall be the same as those applicable
to other employees of the Group.
7.2 For the purpose of section 32, Employment Ordinance, it is agreed that
the Company may deduct from the Salary the amount of any contribution
payable by the Executive under any scheme, in which the Executive may
elect to participate.
8. HOLIDAYS
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8.1 The Executive shall during the Term be entitled to paid leave of
absence of 45 working days (in addition to the usual public holidays)
for every consecutive period of 12 month, which shall be taken by the
Executive at such time or times as shall be mutually convenient to the
Executive and the Company. Accrued paid leave may be carried forward up
to a maximum of 90 working's or, at the option of the Executive, a
payment in lieu thereof to be calculated on the following basis or such
other basis as the parties may reasonably agree shall be made to the
Executive:
P = DIN x S x 12
where:
P is the amount of the payment in lieu
D is the number of working days of accrued leave which are not
carried forward into the following year
N is the total number of working days in the year
S is the Salary at the end of the year in which the untaken
leave accrued
8.2 The following arrangements shall apply whenever the Executive is
required to travel outside Hong Kong in the performance of his duties
under this Agreement:
(a) ordinary class travel tickets shall be provided to the, Executive;
(b) full reimbursement shall be made to the Executive for meal expenses
reasonably incurred by him;
(C) full reimbursement shall be made to the Executive for all travel
expenses reasonably incurred by him,
(d) accommodation at an international class hotel shall be provided to the
Executive;
-and if ordinary class travel or international class hotel
accommodation is unavailable to or at the city to which the Executive
is required to travel, the business class of travel and accommodation
available shall be provided to the Executive,
8.3 For the purposes of the Employment Ordinance, the "leave period" of the
Executive shall end on 31 December of each year.
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9. CONFIDENTIALITY
---------------
9.1 The Executive shall not at any time during or after the Term use,
divulge or communicate to or cause or enable any third party (other
than any officer or employee of any member of the Group whose province
it is to know the same) to become aware of or use, take away, conceal,
destroy or retain for his own or some other person's advantage or to
the detriment of any member of the Group any secret, confidential or
other information, including but not limited to any of the
technological, know-how or information used or applied or which may be
used or applied by the Group in relation to its business or potential
business or which the Group has obtained from any third party on terms
that restrict its disclosure or use, other confidential technical
information, any of the trade secrets, clients' list, accounts,
financial or trading information or other confidential or personal
information which the Executive may receive or obtain in relation to
the business, finances, dealings or affairs of any member of the Group
or any principal, joint venture partner, contracting party or client of
the Group including any information regarding the products, services,
research program, projects or other technical data, know-how or
specifications, or the finances, proposals, contractual arrangements,
principals, joint venture partners, contracting parties, clients,
employees or agents of any member of the Group, provided that this
provisions of this Clause shall not apply to any information or
material which is in the public domain other than as a result of any
unauthorized disclosure.
10. COPYRIGHT AND INVENTIONS
------------------------
10.1 In consideration of the Salary payable to the Executive under this
Agreement, the Executive acknowledges that all rights of copyright,
design trade and service marks which result from or are suggested by
anything arising in the course of or in connection with his employment
under this Agreement (in particular but without limitation rights to
all concepts, designs, drawings, sketches, schemes, models and
specifications) shall belong absolutely to the Company and the
Executive hereby assigns the same to the Company by way of present and
future assignment to hold the same unto the Company absolutely
throughout all countries and places of the world.
10.2 If at any time during the Term the Executive shall either alone or
jointly make, discover or acquire any business concept or idea,
invention, discovery, design, copyright work, development, improvement,
process and secret whatsoever or any interest therein (whether the
subject of letters patent or not) which shall relate to or concern any
of the services, products or methods of conducting business or the
production of any matter whatsoever of or by any member of the Group or
any of the clients of the Group (hereafter together referred to as an
"Invention"), or if details of any Invention shall be communicated to
the Executive by any other employee of any member of the Group, then:
(a) the Executive shall forthwith in writing communicate full
details thereof including all necessary plans and models to
the Board or as the Board may direct;
(b) any Invention made or discovered by the Executive or his share
therein if made or discovered jointly shall belong to and be-
the absolute property of the relevant member of the Group;
(c) at the request of the relevant member of the Group and both
during the Term and after its expiry or termination the
Executive shall at the expense of that member of the Group or
its nominee as part of his duties under this Agreement join
with and assist that member of the Group or its nominee in
obtaining and/or renewing letters patent, copyright, design
and/or trade or service ▇▇▇▇ registration or other like
protection in such countries as the ]3oard may direct for any
Invention and shall execute such deeds and documents and carry
out such acts as may be necessary for vesting in that member
of the Group or its nominee as the case may be the sole
beneficial right in any Invention;
(d) none of the members of the Group shall he under any liability
to account to the Executive for any revenue or profit derived
or resulting from any invention.
10.3 The Executive hereby irrevocably and by way of security appoints each
Executive of each member of the Group from time to time to be his
attorney and in his name and on his behalf to. do and execute any such
act or instrument as may be
8
necessary for the purpose of implementing the provisions of this Clause
10. The Executive agrees to confirm and ratify all such acts and
instruments.
11. RESTRICTIVE COVENANTS
---------------------
11.1 The Executive covenants with and undertakes to the Company that he
shall not and that he will procure that none of his Associates will:
(a) at any time during the Term or within 12 months from the date
of the expiry or the sooner determination of the Term in any
part of the world either alone or jointly with or as manager
or agent for any person, firm or company directly or
indirectly and whether or not for gain:
(i) engage, employ or solicit for employment by any
person in any business any employee, former employee,
agent or former agent of any member of [be Group
(save and except former employees whose employment
with the Group has been terminated for a period of
not less than one year prior to their engagement by
the Executive); or
(ii) be interested in any project or proposal on behalf or
for the benefit of any person who within 12 months
prior to the expiry or sooner determination of the
Term is a principal, joint venture partner,
contracting party or client or a potential principal,
joint venture partner, contracting party or client of
the Group or an Associate of any of the foregoing
and, for this purpose, a potential principal, joint
venture partner, contracting party or client is any
person to whom the Group has made a proposal or
presentation with a view to scouring appointment as a
consultant or the provision of services of the Group,
co-operation for a business venture or undertaking,
the entering into of any material contract for the
development of the Group's business or instructions
for an assignment;
(iii) be interested in any project or proposal for the
acquisition, turning to account, development of or
investment in:
(aa) any business or asset in which any member of
the Group was during the Term considering to
acquire, turn to account, develop at invest,
unless the Group shall have decided against
such acquisition, turning to account,
development of investment or invited the
Executive or his Associates in writing to
participate in, or consented in writing to
the Executive or his Associates'
acquisition, turning to account or
development of or investment in, such
business or asset; or
(bb) any asset of any member of the Group, unless
such asset is offered by the relevant member
of the Group for sale to, turning to account
or development by third parties; or
(iv) be engaged or interested in or concerned with the
business of the manufacture and sale of printed
circuit boards or any other principal businesses
carried on from time to time by any member of the
Group during the Term;
(b) at any time after the expiry of the Term or its sooner
determination use for any purpose whatsoever the name or
trading style of any member of the Group in Hong Kong and the
People's Republic of China or any other part of the world or
represent himself or themselves as carrying on or continuing
or being connected With any member of the Group or (where
applicable) any of its shareholders or their respective
business.
11.2 Since the Executive has obtained and is likely to obtain in the course
of his employment hereunder Trade Secrets and other Confidential
Information and since the Executive has and is likely to obtain during
the course of his employment hereunder personal knowledge and influence
over principals, joint venture partners, contracting parties, clients,
staff, officers and agents of the Group, the Executive hereby agrees
with the Company that in addition to the restriction containedin Clause
9 he will not at any time during or for a period of two years after the
expiry of the Term or its sooner determination use either on his own
account or for others or partly for himself and partly for others or to
the detriment of
9
any member of the Group such Trade Secrets or other Confidential
Information, save in each case with the prior written consent of the
Company.
11.3 The Company hereby covenants with and undertakes in favor of the
Executive that neither it nor any member of the Group will after the
expiry of the Term or its sooner determination use the Executive's name
or represent that the Executive is carrying on or continuing to be or
being connected with any member of the Group or their businesses
whether in Hong Kong, the People's Republic of China or elsewhere,
11.4 For the purposes of Clause 11.1;
(a) "employee" includes any staff of any of the sub-contractors of
any member of the group or any successor thereof; and
(b) "assets" include intellectual property rights and know-how of
all form and description that are related to any of the
principal businesses carried on from time to time by any
member of the Group during the Term and all licenses and
rights to use or apply any such rights or know-how.
11.5 For the purposes of Clause 11.2;
(a) "Trade Secrets" means trade secrets including knowledge of and
know-how in connection with the Group or any of its products,
businesses or proposed products or businesses and which are so
confidential as to require protection as trade secrets; and
(b) "other Confidential Information" means:
(i) any information imparted to the Executive on the
express basis that it is confidential; and
(ii) any other information or knowledge received or
obtained by the Executive which if used, divulged or
communicated to any person other than in accordance
with Clause 9 would have infringed the restriction in
that Clause.
11.6 Nothing in this Clause 11 (other than Clauses 11.2 and 11.7) shall
apply to:
(a) the direct or indirect holding of any securities listed on a
stock exchange where the total voting rights exercisable at
general meetings of the company concerned as represented by
such holding do not exceed 5 per cent. of the total voting
rights attaching to the securities of the same class as that
held by the Executive and/or his Associates, Provided That
neither the Executive nor any of big Associates participate in
or are otherwise involved in the management of the company; or
(b) the holding by the Executive or any of his Associates of any
securities, of the Company or its holding company.
11.7 The Executive warrants to and in favour of the Company that save through
his interests and the interests of his Associates in the Company or his
employment by the Company pursuant to this, Agreement, neither lie nor any of
his Associates is on the date of this Agreement engaged or interested in or is
concerned with in Hong Kong and the People's Republic of China or elsewhere any
of the specific businesses referred to in Clause 11.1 (a)(iv). The warranty
contained in this Clause shall be deemed repeated by the Executive every day
during the Term.
11.8 While the restrictions contained in this Clause 11 are considered by the
par-ties to be reasonable in all the circumstances it is agreed that if any one
or more of such restrictions shall either taken by itself or themselves together
be adjudged to go beyond what is reasonable in all the circumstances for the
protection of the legitimate business of the Group but would be adjudged
reasonable if any particular restriction or restrictions were deleted or if any
part or parts of the wording thereof were deleted, restricted or limited in a
particular manner, then the restriction contained in this Clause 11 shall apply
with such deletion, restriction or limitation as the case may be.
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11.9 In the event of and notwithstanding the expiry of the Term or its sooner
determination, each of the parties covenants with and undertakes to the other of
them that it or he will at all times and in all respects continue to observe and
comply with the provisions of this Clause 11 during the time periods stipulated
in this Agreement.
12. TERMINATION
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12.1 The Company may forthwith terminate the appointment of the Executive under
this Agreement prior to the expiry of the Term by service of a notice in writing
to such effect to the Executive if.
(a) the Executive shall be disqualified to act as a director of
any member of the Group under any applicable law or rules of
any stock exchange;
(b) the Executive shall be guilty of any dishonesty, gross
misconduct or willful neglect of duty or shall commit any
continued material breach of the terms of this Agreement after
written warning (other than a breach which being capable of
remedy shall be remedied by the Executive to the satisfaction
of the Board within 30 days upon his being called upon to do
so in writing by the Board);
(c) the Executive shall be guilty of conduct likely to bring
himself or any member of the Group into disrepute;
(d) the Executive shall become bankrupt or make any arrangement or
composition with his creditors or as a receiving order made
against him;
(e) any company (other than a member of the Group) in which the
Executive is a director or a direct or indirect shareholder
goes into liquidation or becomes insolvent or suffers the
presentation of a winding up petition or analogous proceedings
brought against it;
(f) the Executive is convicted of any criminal offence (other than
an offence which in the reasonable opinion of the Board does
not affect his position in the Company);
(g) the Executive persistently refuses to carry out any reasonable
lawful order given to him in the course of his employment or
persistently fails diligently to attend to his duties
hereunder; or
(h) the Executive shall during the Term be absent (other than
during periods of holiday) for an aggregate period of 120
working days;
(i) there is any material or persistent deviation by the executive
from any matter or circumstances represented by him in the
statement referred to in Clause 4.3(a); or
(j) the Executive is in material breach of any of the terms of the
undertaking referred to in Clause 4.3(c),
12.2 The Company may, if it is advised that it is not entitled under the
Employment Ordinance to terminate this Agreement by immediate notice
pursuant to Clause 12.1, terminate this Agreement upon the occurrence
of any of the events specified in that Clause by 7 days' notice in
writing served on the Executive and, in such event the "agreed period"
for the purpose of section 6(2)(c) of the Employment Ordinance shall be
7 days.
12.3 The Executive shall have no claim against the Company for damages or
otherwise by reason of termination under this Clause 12 and no delay or
forbearance by the Company in exercising any such right of termination
shall constitute a waiver of that right.
13. EFFECT OF TERMINATION
---------------------
13.1 All documents, records, correspondence, client lists, accounts,
statistics, equipment or other property relating to the businesses or
affairs of any member of the Group (including all those items referred
to in Clause 9) kept in
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the possession or under the control of the Executive and all copies
thereof or extracts therefrom made, by or on behalf of the Executive
shall be and remain the property of the relevant member of the Group
and shall be. delivered up to the Company upon the expiry of the Term
or its sooner determination.
13.2 If the Executive is at any time appointed a director of any member of
the Group, he shall on or after the expiry of the Term or its sooner
determination resign in writing from any office held by him as such
director and from all other offices held by him with any member of the
Group and to execute an acknowledgment under seal to the effect that he
has no claims against the Company or any other member of the Group (as
the case may be) for compensation for loss of office or otherwise.
13.3 The Executive shall upon the expiry of the Term or its sooner
determination transfer, without payment and in such manner as the
Company may require, all such shares in any of the Company's
subsidiaries or associated companies as withheld by him as nominee for
any member of the Group.
13.4 In the event of the Executive failing to take any of the actions
required to be taken by him under Clauses 13.2 or 13.3 forthwith on
request by the Company, the Company is hereby irrevocably and by way of
security appointed the attorney of the Executive to appoint some person
in the name of and on behalf of the Executive to sign, seal and deliver
resignations to the irrelevant member of the Group and instruments of
transform of the relevant shares and to file such returns or take such
other action as may be necessary or desirable under the Companies Law
(2000 Revision) of the Cayman Islands, the International Business
Companies Ordinance (Cap.291 of the laws of the British Virgin
Islands), the Companies Ordinance, the Stamp Duty Ordinance and other
applicable legislation. The Executive agrees to confirm and ratify such
documents and acts.
14. INDEMNITY
---------
14.1 The Company agrees to indemnify and hold homeless the Executive on
demand from and against any and all losses, claims, damages,
liabilities, and expenses, including without limitation, any
proceedings brought against the Executive, arising from the performance
of his duties pursuant to or his appointment under this Agreement, so
far as permitted by law, except in any case where the matter in respect
of which indemnification is sought under this Clause was caused by the
willful default or willful neglect of the Executive.
14.2 The Company shall if so required by the Executive during the Term take
out and maintain for the benefit of the Executive an insurance policy
against director's liability for such an amount and on such terms as to
cover as the parties may reasonably agree, provided that the Company
shall not be required to expend more than HK$2,500 per annum in payment
of premiums on such policy.
15. RFFECT OF RECONSTRUCTTON
------------------------
15.1 The Executive acknowledges that if before the expiration of the Term
this Agreement is terminated by reason of die liquidation of the
Company or the transfer of its business to another company for the
purpose of reconstruction or amalgamation and he is offered employment
with any concern or undertaking resulting from such reconstruction or
amalgamation on terms and conditions which are both in form and
substance no less favourable, taken as a whole than the provisions of
this Agreement he will have no claim against the Company in respect of
such termination, provided that there is no change of business or
control resulting from such reconstruction or amalgamation, otherwise
the Executive shall be entitled to terminate this Agreement, but
neither the Company nor the Executive shall have any claim in respect
of such termination.
16. ENTIRE AGREEMENT
----------------
16.1 This Agreement embodies all the terms and provisions of and relating to
the employment of the Executive by the Company and/or by any member of
the Group.
16.2 The terms of this Agreement may only be varied in writing by the
parties hereto or their duly authorized agents.
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17. PRIOR AGREEMENTS
----------------
17.1 This Agreement is in substitution for and shall supersede all former
and existing agreements or arrangements made orally or in writing for
the employment of the Executive by any member of the Group, which shall
be deemed to have been cancelled with effect from the date of this
Agreement and no party shall have any claim in respect of any such
superseded agreements or arrangements.
18. SERVICE OF NOTICE, ETC,
----------------------
18.1 Any notice, claim, demand, court process or other communication under
this Agreement (collectively "communication" in this Clause 18) shall
be in the English language and may be served or given personally or
sent to the address (including cable. address), telex or facsimile
numbers (if any) stated after the relevant party's name at the
beginning of this segment or to such other address (which must be in
Hong Kong), telex or facsimile numbers as may from time to time be
notified in writing by one party to the other with specific reference
to this Agreement, by the following means and the addressee of such
communication shall be deemed to have received the same within the time
stated adjacent to the relevant means of dispatch:
Means of dispatch Time of deemed receipt
----------------- ----------------------
Local mail or courier 24 hours
Telex on dispatch
Facsimile on dispatch
Air courier/Speedpost 3 days
Airmail 5 days
18.2 A communication served in accordance with Clause 15. 1 shall be deemed
sufficiently served and in proving service and/or receipt of a
communication it shall be sufficient to prove that such communication
was left at the addressee's address or that the envelope containing
such communication was properly addressed and posted or dispatched to
the addressee's address or that the communication was properly
transmitted by telex, facsimile or cable to the addressee. In the case
of communication by telex, such communication shall be deemed properly
transmitted upon the receipt by the machine sending the telex the telex
answerback of the addressee; and in the case of facsimile transmission,
such transmission shall be deemed properly transmitted on receipt of a
satisfactory report of transmission printed out by the sending machine.
18.3 Nothing in this Clause 18 shall preclude the service of communication
or the proof of such service by any mode permitted by law.
19. ASSIGNMENT
----------
19.1 Save as provided under Clause 3.2, none of the rights or duties of the
Company or the Executive, under this Agreement may be assigned,
transferred, subcontracted or delegated.
20. PROPER LAW AND FORUM
--------------------
20.l This Agreement shall in all respects be interpreted and construed in
accordance with and governed by Hong Kong law and each of the parties
hereto hereby irrevocably submits to the nonexclusive jurisdiction of
the Hong Kong courts and waives all defenses to any action arising
hereunder brought in the courts of Hong Kong on the ground that such
action is brought in an inconvenient forum.
IN WITNESS whereof the parties hereto entered into this Agreement the
day and year first above written.
SIGNED for and on behalf of
FU CHEONG INTERNATIONAL HOLDINGS LIMITED
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by
one of its directors,
in the presence of:
Witness to all the above signatures;
Witness' signature:
Witness' name:
Witness' address:
Witness' occupation:
SIGNED, SEALED and DELIVERED by
HO WING CEIEONG
in the presence of:
Witness to all the above signatures:
Witness' signature:
Witness' name:
Witness' address;
Witness' occupation:
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