Exhibit 4.5
Dated 1 April 2002
---------------------------
▇▇▇▇▇▇▇.▇▇▇, INC
and
▇▇▇ ▇▇▇▇ BUN ▇▇▇▇▇
___________________________
EMPLOYMENT CONTRACT
FOR
CHIEF FINANCIAL OFFICER
___________________________
THIS AGREEMENT is made this 1st day of April, 2002
BETWEEN
▇▇▇▇▇▇▇.▇▇▇, Inc which registered office is situate at ▇▇/▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇ (hereinafter called "the Employer") of the one part, and
the person whose name and address are set out in the Schedule hereto
(hereinafter called "the Employee") of the other part.
NOW IT IS AGREED as follows:
1. Interpretation
1.1 In this Agreement:
(i) unless the context otherwise requires, words herein denoting one
gender include all other genders and words denoting the singular
include the plural and vice versa;
(ii) any reference to a statutory provision shall be deemed to include a
reference to any modification or re-enactment of it;
(iii) the clause headings do not form part of the terms and conditions of
this Agreement and shall not be taken into account in construing or
interpreting this Agreement;
(iv) reference in this Agreement to any clause, sub-clause, schedule,
exhibit or paragraph without further designation shall be construed
as references to the clause, sub-clause, schedule, exhibit or
paragraph of this Agreement so numbered; and
(v) any clause that is invalid or unenforceable because of any
legislation or ruling of any court of competent jurisdiction shall
not render the whole Agreement void but shall only be:
(a) varied to such an extent so as to make it valid and
enforceable without affecting other clauses, or
(b) if variation is impossible, excluded from this Agreement as if
it had not existed at the time of signing of this Agreement
while the other clauses remain valid and subsisting.
2. Job Title and Commencement
2.1 The Employer shall employ the Employee in the capacity and from the date of
commencement set out in the Schedule upon the terms and conditions
hereinafter set out.
2.2 The Employee shall perform such duties and responsibilities as are
normally related to such position in accordance with the standards of the
industry and any additional duties now or hereafter assigned to the
Employee by the Employer. The Employee shall abide by
the rules, regulations, and practices as adopted or modified from time
to time in the Employer's sole discretion.
2.3 Except upon the prior written consent of the Employer, the Employee
will not, during the term of this Agreement, (i) accept any other
employment, or (ii) engage, directly or indirectly, in any other
business activity (whether or not pursued for pecuniary advantage) that
might interfere with the Employee's duties and responsibilities
hereunder or create a conflict of interest with the Employer.
2.4 The Employee represents and warrants that the Employee's execution of
this Agreement, the Employee's employment with the Employer, and the
performance of the Employee's proposed duties under this Agreement
shall not violate any obligations the Employee may have to any other
employer, person or entity, including any obligations with respect to
proprietary or confidential information of any other person or entity.
3. Place of work
3.1 The normal place of work for the Employee will be the office of the
Employer as it may change from time to time; provided, however that the
Employee shall travel and work both in Hong Kong and abroad, as may be
required for the proper fulfillment of his duties.
4. Hours of Employment
4.1 The Employee's normal hours of employment shall be the usual office
hours of the Employer that the Employer shall from time to time set for
each day.
4.2 The Employer can at any time require the Employee to work such hours
outside the normal hours of employment as considered by the Employer at
its sole discretion to be necessary for the efficient discharge of the
duties of the Employee.
5. Remuneration
5.1 The Employer shall pay to the Employee such remuneration set out in the
Schedule. The Employee's base remuneration will be reviewed from time
to time in accordance with the established procedures of the Employer
for adjusting salaries for similarly situated employees and may be
adjusted in the sole discretion of the Employer.
5.2 The Employee may also receive a bonus at such time and in such amount
that the Employer may at its sole discretion fix. The Employee is only
entitled to receive such a bonus when the Employee is in the employ of
the Employer at the time when the Employer pays such bonus and the
Employee has no right to ask for or demand the Employer to pay any
bonus on pro-rata basis.
5.3 The Employee shall be entitled to participate in the benefits made
generally available by the Employer to similarly situated employees, in
accordance with the benefit plans
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established by the Employer, and as the same may be amended from time
to time in the Employer's sole discretion.
5.4 The Employer shall reimburse the Employee for reasonable business
expenses incurred in the performance of the Employee's duties hereunder
in accordance with the Employer's expense reimbursement guidelines.
6. Tax Equalization
6.1 The Employer shall provide tax equalization benefit to the Employee.
Under the tax equalization arrangements, the Employer will be
responsible for the Employee's PRC individual income tax on the
Employee's remuneration as set out in section 5 above ("the
Remuneration") and the Employee will be responsible for hypothetical
Hong Kong Salary Tax attributable to the Remuneration.
6.2 The hypothetical tax is the amount payable by the Employee to the
Employer which is equivalent to the amount of Hong Kong Salary Tax
attributable to the Remuneration payable by the Employee to the Hong
Kong Tax Authorities had the Employee remained in Hong Kong for the
Employment.
6.3 The Employer shall be responsible for the appointment of the tax
representative for performing the Employee's tax equalization
calculations, filing of the relevant tax returns and payment of PRC
individual income tax. The Employer shall bear all such related
professional fees payable to the tax representative.
7. Holidays
7.1 The Employee is entitled, in addition to the PRC statutory public
holidays, to take the number of working days set out in the Schedule as
paid holiday in each holiday year, the holiday year being the period
set out in the Schedule.
7.2 If the Employee's employment commences or terminates part way through
the holiday year, his entitlement to holidays during that year will be
assessed on a pro-rata basis.
7.3 Holidays must be taken at times convenient to the Employer and
sufficient notice of intention to take holiday must be given to the
Employee's manager.
7.4 Holiday entitlement unused at the end of a holiday year cannot be
carried over into the next holiday year.
7.5 Upon termination of employment,
(i) the Employer shall be entitled to make deductions from the
Employee's final pay for any holidays taken in excess of the
Employee's proportionate annual holiday entitlement; and
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(ii) the Employee shall be entitled to pro rata payment in lieu of
any unused annual holiday entitlement provided; however, that
the Employer may, in its absolute discretion, require that the
Employee take all accrued but unused annual holiday
entitlement prior to the termination of the employment.
7.6 A day's holiday pay for the purpose of this clause shall be calculated
by dividing 12 months total salary at the monthly rate at the time of
calculation by 365 days.
8. Sickness
8.1 In the event of absence on account of sickness or injury the Employee
(or someone on his behalf) must inform the Employer of the reason for
the Employee's absence as soon as possible and must do so not later
than 10:00 a.m. on the date on which absence first occurs.
8.2 The Employee must produce to the Employer a medical certificate stating
the reason for absence on the first day that the Employee resumes
working when the sick leave lasts for 3 days or less and within the
4/th/ calendar day of absence when the absence lasts for more than 3
days, and thereafter provide a like certificate each week to cover the
subsequent period of absence.
8.3 The Employee will be paid his statutory sick pay for days of absence on
account of sickness or injury in accordance with Section 33 of the
Employment Ordinance of the Laws of Hong Kong. Entitlement to payment
is subject to notification of absence and production of medical
certificates in accordance with Clauses 7.1 and 7.2.
9. Termination of Employment
9.1 The employment of the Employee may be terminated:
(i) by the Employee on giving to the Employer not less than such
period of notice set out in the Schedule written notice of
resignation from employment;
(ii) by the Employer on giving to the Employee written notice, or
at the discretion of the Employer payment in lieu of such
notice, for such period set out in the Schedule;
(iii) by the Employer without notice or payment in lieu of notice
for the occurrence of any event set out in Section 9 of the
Employment Ordinance giving to the Employer a right to
terminate the employment without notice.
9.2 Following any termination of employment, the Employee shall cooperate
with the Employer in the winding up of pending work on behalf of the
Employer and the orderly transfer of work to other employees. The
Employee shall also cooperate with the Employer in the defense of any
action brought by any third party against the Employer that relates to
the Employee's employment by the Employer.
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9.3 Except in situations where the Employee's employment is terminated by
death, disability or pursuant to Sub-clause 9.1(iii), in the event the
Employer terminates the employment of the Employee at anytime, the
Employee will be eligible to receive an amount equal to six months of
the then-current Base Remuneration of the Employee payable in the form
of salary continuation. The Employee's eligibility for severance may be
conditioned on the Employee having first signed a release agreement.
The Employee shall not be entitled to any severance payments if the
Employee's employment is terminated by death, disability or pursuant to
Sub-clause 9.1(iii) or if the Employee's employment is terminated by
the Employee.
10. Relocation Allowance
Upon termination of employment, the Employee is entitled to a cash
relocation allowance of the amount specified in the Schedule, provided
that the Employee completed one full year service starting from the
commencement date of this employment contract, or termination by the
Employer.
11. Non-Competition
11.1 For the period of six months following the termination of the
employment, the Employee shall not, either alone or jointly with
another or others, whether as principal, agent, consultant, director,
partner, shareholder, employee or in any other capacity, whether
directly or indirectly through any other person, firm or company, and
whether for his own benefit or that of others, save as the beneficial
owner of shares or other securities of a body corporate whose shares
are quoted on a recognised stock exchange and which when aggregated
with shares or securities beneficially owned by his spouse, children,
step-children, parents and parents' children total no more than five
percent of any single class of shares or securities in such body
corporate, be engaged or concerned or interested in or carry on any
business conducted in Hong Kong and the PRC which competes with any
business carried on by the Employer or its affiliates at the date of
such termination and in which the Employee was involved at any time
during the last two years of the employment or in relation to which the
Employee acquired any confidential information during the course of the
employment. For the purposes of this Agreement, a competitive business
is any business in the filed of information technology relating to
media placement, on-line advertising, e-commerce or internet marketing.
12. Inventions and Proprietary Information Agreement
12.1 The Employer agrees to sign and be bound by the terms of the
Proprietary Information and Inventions Agreement, which is attached
hereto as Exhibit B ("Proprietary Information Agreement").
13. Amendments, Interpretation and Waiver
13.1 This Agreement may be amended only a written agreement signed by the
Employee and a duly authorized representative of the Employer. This
Agreement has been reviewed by the
5
Employee and the Employer and shall be deemed to be the product of the
parties. The Employee agrees that he intends the literal words of the
Agreement and that no parole evidence shall be necessary or appropriate
to establish the Employee's actual intentions. Failure to exercise any
right under this Agreement shall not constitute a waiver of such right.
14. Jurisdiction and Applicable Law
14.1 This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong, and the parties hereto submit to the
non-exclusive jurisdiction of the Hong Kong court.
15. Obligations Survive Termination of Employment
15.1 Employee agrees that any and all of Employee's obligations under this
agreement which are capable of operation after the termination of
employment, including but not limited to those contained in Clauses 10
to 12, shall survive the termination of employment and the termination
of this Agreement.
16. Counterparts
16.1 This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original of this Agreement, but all of which
together shall constitute one and the same instrument.
17. Authority
17.1 Each party represents and warrants that such party has the right, power
and authority to enter into and execute this Agreement and to perform
and discharge all of the obligations hereunder; and that this Agreement
constitutes the valid and legally binding agreement and obligation of
such party and is enforceable in accordance with its terms.
18. Entire Agreement
18.1 This Agreement, along with any other agreements specifically referenced
herein including the Proprietary Information Agreement, is intended to
be the final, complete, and exclusive statement of the terms of
Employee's employment by the Employer and may not be contradicted by
evidence of any prior or contemporaneous statements or agreements,
except for agreements specifically referenced herein. To the extent
that the practices, policies or procedures of the Employer, now or in
the future, apply to the Employee and are inconsistent with the terms
of this Agreement, the provisions of this Agreement shall control.
Except as expressly provided in an amendment executed in accordance
with Clause 11 above, any subsequent change in Employee's duties,
position, or compensation will not affect the validity or scope of this
Agreement.
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SIGNED for and on behalf of the Employer by )
)
its authorized representative ) /s/ ▇▇▇ Sun
)
)
SIGNED by the Employee in the presence of: ) /s/ ▇▇▇▇▇ ▇▇▇
)
)
7
SCHEDULE
Name: ▇▇▇ ▇▇▇▇ Bun ▇▇▇▇▇
Address: Hong Kong
Job Title: Chief Financial Officer
Date of Commencement: 1 April 2002
Travel Allowance: One round trip economy air-ticket to Hong Kong every
quarter
Base Remuneration: US$158,000 per annum payable by equal monthly
installments in arrears at the end of each calendar
month
Housing Allowance: Not more than US$2,250 per month
Other Allowances: Not more than US$19,800 per annum reimbursable by
equal monthly installments at the end of each calendar
month
Relocation Allowance: US$1,500
Holiday year: from 1/st/ January to 31/st/ December
Number of Paid
holidays (in
additional to
statutory public
holidays: 15 days
Notice Period for
termination by
Employee: 3 month's prior notice in writing.
Notice Period for
termination by
Employer: 3 month's prior notice in writing.
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EXHIBIT A
TERMINATION CERTIFICATE CONCERNING
COMPANY PROPRIETARY INFORMATION
This is to certify that I have returned all property of ▇▇▇▇▇▇▇.▇▇▇, Inc.
(the "Company"), including, without limitation, all source code listings, books,
manuals, records, models, drawings, reports, notes, contracts, lists,
blueprints, and other documents and materials, Proprietary Information, and
equipment furnished to or prepared by me in the course of or incident to my
employment with the Company, and that I did not make or distribute any copies of
the foregoing.
I further certify that I have reviewed the Company's Proprietary
Information Agreement ("Agreement") signed by me and that I have complied with
and will continue to comply with each and all of its terms and conditions,
including without limitation: (i) the reporting of any and all ideas, concepts,
inventions, discoveries, developments, know-how, structures, designs, formulas,
algorithms, methods, products, processes, systems and technologies; any and all
patents, patents pending, copyrights, moral rights, trademarks and any other
intellectual property rights therein; and any and all improvements,
modifications, derivative works from, other rights in and claims related to any
of the foregoing under the laws of any jurisdiction, conceived or developed by
me alone or with others and covered by the Agreement and (ii) the preservation
as confidential all Proprietary Information pertaining to the Company. This
certificate in no manner limits my responsibilities or the Company's rights
under the Agreement.
On termination of my employment with the Company, I will be employed by
_____________________ [Name of New Employer] [in the ______________ division]
and I will be working in connection with the following projects:
[generally describe the projects]
________________________________________________________________________________
________________________________________________________________________________
Date: _____________
___________________________________
Employee Name
___________________________________
Employee Signature
EXHIBIT B
PROPRIETARY INFORMATION AGREEMENT
In consideration of my employment by ▇▇▇▇▇▇▇.▇▇▇, Inc., a Cayman Island
incorporated company (the "Company"), I hereby agree to the following
restrictions and obligations placed on my use and development of information,
technology, ideas, inventions and other materials:
1. Proprietary Information
1.1 Restrictions on Proprietary Information. I agree that, during my
employment and at all times thereafter, I will hold the Proprietary
Information of the Company in strict confidence and will neither use
the information nor disclose it to anyone, except to the extent
necessary to carry out my responsibilities as an employee of the
Company or as specifically authorized in writing by a duly authorized
officer of the Company other than me. I understand that "Proprietary
Information" means all information pertaining in any manner to the
business of the Company or its affiliates, consultants, customers,
business associates or members, unless (i) the information is or
becomes generally known to the public through lawful means and through
no fault of mine; (ii) the information was part of my general knowledge
prior to the initial disclosure of the information by the Company or
any person under a duty of confidentiality; or (iii) the information is
disclosed to me without restriction by a third party who rightfully
possesses the information and is under no duty of confidentiality. This
definition of "Proprietary Information" includes but is not limited to
any and all (a) technical or engineering information, know-how,
computer codes, programs, tools, data, designs, diagrams, plans,
specifications, trade secrets, inventions, concepts, structures,
improvements, products, patents pending, prototypes, processes,
formulas, algorithms, methods, techniques, works in process, systems,
technologies or applications; (b) financial and other information about
costs, profits, markets, sales, customers, subscribers, members, and
bids; (c) plans for business, marketing, future development and new
product concepts; and (d) employee personnel files and information
about employee compensation and benefits; in any form and whether or
not labeled or identified as confidential or proprietary. I agree that
I will have the burden of proving the applicability of any of the
foregoing exceptions.
1.2 Location and Reproduction. I agree to maintain at my work station
and/or any other place under my control only such Proprietary
Information as I have a current "need to know." I agree to return to
the appropriate person or location or otherwise properly dispose of
Proprietary Information once that need to know no longer exists. I also
agree not to make copies or otherwise reproduce Proprietary Information
unless there is a legitimate business need for reproduction.
1.3 Prior Actions and Knowledge. Except as disclosed on Exhibit B-1 to this
Agreement, I have no knowledge about the Company's business or
Proprietary Information, other than information I have learned from the
Company in the course of being hired and employed.
1.4 Third Party Information. I recognize that the Company has received and
will receive confidential or proprietary information from third
parties. I will hold all such information in the strictest confidence
and will not use the information or disclose it to anyone (except
(B)-1
as necessary in carrying out my work for the Company consistent with
the Company's agreement with such third party).
1.5 Interference with Business. I acknowledge that because of my position
in the Company, I will have access to the Company's confidential
information and trade secrets. I agree that during my employment with
the Company and for a period of one (1) year after termination of my
employment with the Company, I shall not directly or indirectly (i)
divert or attempt to divert from the Company (or any affiliate) any
business of any kind, including without limitation the solicitation of
or interference with any of its customers, clients, members, business
partners or suppliers or (ii) solicit, induce, recruit or encourage any
person employed by the Company to terminate his or her employment.
2. Inventions
2.1 Assignment of Inventions. I agree to assign and transfer to the
Company, without further consideration, my entire right, title and
interest (throughout Hong Kong, the United States and in all other
countries or jurisdictions), free and clear of all liens and
encumbrances, in and to all Inventions. Such assignment and transfer to
the Company shall be continuous during my employment as of the relevant
time of development of each such Invention. The Company may, in its
sole discretion, agree to provide consideration for certain Inventions
through a written agreement between the Company and the undersigned
which specifically provides for such consideration; in all other cases,
no consideration shall be paid. The Inventions shall be the sole
property of the Company, whether or not copyrightable or patentable or
in a commercial stage of development. In addition, I agree to maintain
adequate and current written records on the development of all
Inventions, which shall also remain the sole property of the Company.
2.2 Inventions. "Inventions" collectively means any and all ideas,
concepts, inventions, discoveries, developments, know-how, structures,
designs, formulas, algorithms, methods, products, processes, systems
and technologies in any stage of development that are conceived,
developed or reduced to practice by me alone or with others; any and
all patents, patents pending, copyrights, moral rights, trademarks and
any other intellectual property rights therein; and any and all
improvements, modifications, derivative works from, other rights in and
claims related to any of the foregoing under the laws of any
jurisdiction; except Inventions excluded in Exhibit B-1.
2.3 Moral Rights. To the extent allowed by law, this assignment of
inventions includes all rights of paternity, integrity, disclosure and
withdrawal and any other rights that may be known as or referred to as
"moral rights," "artist's rights," "droit moral," or the like
(collectively "Moral Rights"). To the extent I retain any such Moral
Rights under applicable law, I hereby ratify and consent to any action
that may be taken with respect to such Moral Rights by or authorized by
the Company and agree not to assert any Moral Rights with respect
thereto. I will confirm any such ratifications, consents and agreements
from time to time as requested by the Company.
2.4 License for Other Inventions. If, in the course of my employment with
the Company, I incorporate into Company property an invention owned by
me or in which I have an
(B)-2
interest, the Company is hereby granted a nonexclusive, royalty-free,
irrevocable, perpetual and transferable license throughout the universe
to make, use, import, sell, copy, distribute, display, perform (whether
or not publicly) such invention as part of and in connection with the
Company property.
2.5 Assist With Registration. In the event any Invention shall be deemed by
the Company to be copyrightable or patentable or otherwise registrable,
I will assist the Company (at its expense) in obtaining and maintaining
letters patent or other applicable registrations and in vesting the
Company with full title. Should the Company be unable to secure my
signature on any document necessary to apply for, prosecute, obtain, or
enforce any patent, copyright, or other right or protection relating to
any Invention, due to my incapacity or any other cause, I hereby
irrevocably designate and appoint the Company and each of its duly
authorized officers and agents as my agent and attorney-in-fact to do
all lawfully permitted acts to further the prosecution, issuance, and
enforcement of patents, copyrights, or other rights or protection with
the same force and effect as if executed and delivered by me.
2.6 Disclosure. I agree to disclose promptly to the Company all Inventions
and relevant records. I further agree to promptly disclose to the
Company any idea that I do not believe to be an Invention, but is
conceived, developed, or reduced to practice by me (alone or with
others) while I am employed by the Company or during the one-year
period following termination of my employment. I will disclose the
idea, along with all information and records pertaining to the idea,
and the Company will examine the disclosure in confidence to determine
if in fact it is an Invention subject to this Agreement.
2.7 Post-Termination Period. I agree that any idea, invention, writing,
discovery, patent, copyright, or trademark or similar item, or
improvement shall be presumed to be an Invention if it is conceived,
developed, used, sold, exploited, or reduced to practice by me or with
my aid within one (1) year after my termination of employment with the
Company. I can rebut the above presumption if I prove that the idea,
invention, writing, discovery, patent, copyright, or trademark or
similar item, or improvement is not an Invention covered by this
Agreement.
3. Former or Conflicting Agreements
3.1 Former Agreements. I represent and warrant that my performance of the
terms of this Agreement will not breach any agreement to keep in
confidence proprietary information acquired by me prior to my
employment by the Company. I have listed in Exhibit B-1 all other
agreements concerning proprietary information or inventions to which I
am a party and attached copies of any agreements in my possession. To
the best of my knowledge, there is no other contract between me and any
other person or entity that is in conflict with this Agreement or
concerns proprietary information, inventions or assignment of ideas.
3.2 Prohibition on Use of Third Party Information. I represent and warrant
and covenant that I will not disclose to the Company, or use, or induce
the Company to use, any proprietary information or trade secrets of any
former employer, if any. I acknowledge and agree that any violation of
this provision shall be grounds for my immediate termination and could
subject me to substantial civil liabilities and criminal penalties. I
further
(B)-3
specifically and expressly acknowledge that no officer or other
employee or representative of the Company has requested or instructed
me to disclose or use any such third party proprietary information or
trade secrets.
4. Termination
4.1 Return of the Company's Property. I agree to promptly return to the
Company upon termination of my employment all Proprietary Information
and all personal property furnished to or prepared by me in the course
of or incident to my employment. Following my termination, I will not
retain any written or other tangible material containing any
Proprietary Information or information pertaining to any Invention.
4.2 Termination Certificate. In the event of the termination of my
employment, I agree, if requested by the Company, to sign and deliver
the Termination Certificate attached as to the Employment Contract for
Executives as Exhibit A.
4.3 Subsequent Employers. I agree that after the termination of my
employment with the Company, I will not enter into any agreement that
conflicts with my obligations under this Agreement and will inform any
subsequent employers of my obligations under this Agreement.
5. No Implied Employment Rights
I recognize that nothing in this Agreement shall be construed to imply
that my employment is guaranteed for any period of time. Unless stated
in a written agreement signed by a duly authorized officer of the
Company, my employment is for an indefinite duration and at-will, and
either the Company or I can terminate our employment relationship at
any time, without notice and for any reason or no reason, with or
without cause.
6. Remedies
I recognize that nothing in this Agreement is intended to limit any
remedy of the Company under any law concerning trade secrets. I
recognize that my violation of this Agreement could cause the Company
irreparable harm and agree that the Company shall have the right to
apply to any court of competent jurisdiction for an order restraining
any breach or threatened breach of this Agreement.
7. Assignment
I acknowledge and agree that my performance is personal hereunder, and
that I shall have no right to assign and shall not assign or purport to
assign any rights or obligations under this Agreement. This Agreement
may be assigned or transferred by the Company.
8. Jurisdiction and Applicable Law
This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong, and the parties hereto submit to the
non-exclusive jurisdiction of the Hong Kong court.
(B)-4
9. Severability
Any provision of this Agreement that is invalid or unenforceable
because of any legislation or ruling of any court of competent
jurisdiction shall not render the whole Agreement void but shall only
be:
(a) varied to such an extent so as to make it valid and enforceable
without affecting other provisions, or
(b) if variation is impossible, excluded from this Agreement as if it
had not existed at the time of signing of this Agreement while
the other provisions remain valid and subsisting.
10. Entire Agreement
This Agreement, along with any other agreements specifically referenced
herein including the Employment Contract, is intended to be the final,
complete, and exclusive statement of the terms of my employment by the
Company and may not be contradicted by evidence of any prior or
contemporaneous statements or agreements, except for agreements
specifically referenced herein. To the extent that the practices,
policies or procedures of the Company, now or in the future, apply to
me and are inconsistent with the terms of this Agreement, the
provisions of this Agreement shall control. The termination of any
employment or other agreement between the Company and me shall not
terminate this Agreement and each and all of the terms and conditions
hereof shall survive and remain in full force and effect.
11. Amendment; Waivers
This Agreement may be amended only a written agreement signed by me and
a duly authorized representative of the Company other than me. This
Agreement has been reviewed by me and the Company and shall be deemed
to be the product of the parties. Failure to exercise any right under
this Agreement shall not constitute a waiver of such right.
12. Interpretation
This Agreement shall be construed as a whole, according to its fair
meaning, and not in favor of or against any party. Sections and section
headings contained in this Agreement are for reference purposes only,
and shall not affect in any manner the meaning of interpretation of
this Agreement. Whenever the context requires, references to the
singular shall include the plural and the plural the singular and any
gender shall include any other gender.
13. Binding Effect
Subject to the foregoing restrictions on assignment, this Agreement
shall inure to the benefit of the Company and its affiliates, officers,
directors, agents, successors and assigns;
(B)-5
and shall be binding on me and my heirs, devisees, spouses, agents,
legal representatives and successors.
I HAVE READ THIS AGREEMENT CAREFULLY AND UNDERSTAND ITS TERMS. I HAVE
COMPLETELY NOTED ON EXHIBIT B-1 TO THIS AGREEMENT ANY PROPRIETARY INFORMATION,
IDEAS, PROCESSES, INVENTIONS, TECHNOLOGY, WRITINGS, PROGRAMS, DESIGNS, FORMULAS,
DISCOVERIES, PATENTS, COPYRIGHTS, OR TRADEMARKS, OR IMPROVEMENTS, RIGHTS, OR
CLAIMS RELATING TO THE FOREGOING, THAT I DESIRE TO EXCLUDE FROM THIS AGREEMENT.
Date: 1/4/02
▇▇▇ ▇▇▇▇ Bun ▇▇▇▇▇
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Employee Name
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Employee Signature
(B)-6
EXHIBIT B-1
EMPLOYEE'S DISCLOSURE
1. Proprietary Information. Except as set forth below, I acknowledge that
at this time I know nothing about the business or Proprietary
Information of Company (the "Company"), other than information I have
learned from the Company in the course of being hired: ________________
_______________________________________________________________________
2. Prior Inventions. Except as set forth below, there are no ideas,
concepts, inventions, discoveries, developments, know-how, structures,
designs, formulas, algorithms, methods, products, processes, systems
and technologies in any stage of development that are conceived,
developed or reduced to practice by me alone or with others; any
patents, patents pending, copyrights, moral rights, trademarks and any
other intellectual property rights therein; or any improvements,
modifications, derivative works from, other rights in and claims
related to any of the foregoing under the laws of any jurisdiction,
that I wish to exclude from the operation of this Agreement: __________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
3. Prior Agreements. Except as set forth below, I am aware of no prior
agreements between me and any other person or entity concerning
proprietary information or inventions (attach copies of all agreements
in your possession):
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
_______________________________________________________________________
Date: 1/4/02
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Employee Name
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Employee Signature
(B-1)-1