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EXHIBIT 10.17
MANAGEMENT AGREEMENT
This EMPLOYMENT AGREEMENT (the "Employment" or "this Agreement") is
made and entered into as of the 31st day of January, 1998, by and between Xxx
Xxxx Holdings Co., Ltd., a Cayman Islands company (hereinafter the "Company",
and together with its subsidiaries and affiliates, "the Xxx Xxxx Group") and
Chan Xxx Xxx, a natural person and residing at 00/X Xxxxxxx Xxx Xxxx, Xxxxxxx
Xxx, Xxxx Xxxx (hereinafter the "Executive").
R E C I T A L S
WHEREAS, the Company desires to retain the services of the Executive as
a co-managing director to manage the business of the Xxx Xxxx Group;
WHEREAS, the Executive desires to perform such services for the Xxx
Xxxx Group as provided herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements set forth herein, the parties hereby agree as follows:
1. TERM OF EMPLOYMENT. Unless otherwise terminated pursuant to Paragraph
6 of this Agreement, the Company shall employ the Executive and the Executive
shall serve the Company as its co-managing director for one (1) year from
January 31, 1998 to January 31, 1999 (the "Term"). After the expiration of the
Term, this Agreement shall automatically renew for six (6) month periods until
either the Company or the Executive elect not to renew this Agreement by
providing the other party notice not less than ninety (90) days prior to the
expiration of any renewal period or, in the case of the Company, three months'
salary in lieu of notice.
2. POSITION. As co-managing director (see Paragraph 5 below), you will be
responsible for the overall strategic direction of the Xxx Xxxx Group and will
report to the Board of Directors of the Company and Board of Directors of any
company that may hold the shares of the Company from time to time.
3. SALARY AND BONUS. In consideration of the services to be performed by
the Executive during his employment with the Company, the Company shall pay the
Executive an annual salary during the Term of HK$1,000,000 (the "Salary"),
payable in 12 equal monthly installments payable in arrears on the last day of
each calendar month. The Executive shall be eligible for an annual incentive
bonus in the sole discretion of the Board or the Compensation Committee. The
term "Compensation Committee" means a committee appointed by the Board of
Directors of the Company with responsibility for setting performance objectives
for the Xxx Xxxx Group, the Executive and other executives, and the details of
any option and other
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incentive programs. Unless additional compensation is otherwise fixed by the
Board or the Compensation Committee, in its sole discretion, the Executive
shall not be entitled to any other salary or fee, whether as an employee,
director or otherwise, for service to multiple companies in the Xxx Xxxx Group.
Taxes, if any, on the Executive's compensation are to be paid by the Executive.
Salary and, to the extent earned, bonus, are inclusive of all perquisites, such
as housing, education, home leave and other expenses.
4. EXPENSES. The Company shall reimburse the Executive for expenses
reasonably incurred by the Executive in connection with the performance of the
services delegated to the Executive upon and subject to submission of vouchers
or other appropriate and legally-acceptable documentation reasonably acceptable
to the Company.
5. RESPONSIBILITIES. The Executive acknowledges that it is the goal of
the shareholders to build the Xxx Xxxx Group's operational and financial
performance. In striving for this goal, it is the Executive's responsibility to
ensure that the activities of the Xxx Xxxx Group are executed in such a manner
as to conform to the standards of integrity and conduct which are applicable to
U.S. businesses conducting business overseas. It is expected that the time spent
working on behalf of the Company will be flexible and not daily, but that he be
available at all times to assist and advise the Company on matters requested by
management or the Board.
6. TERMINATION. During the Term:
(a) The Company may terminate this Agreement forthwith:
(i) if the Board reasonably and fairly determines that (1)
the Executive has been grossly negligent in his duties relating to the Xxx Xxxx
Group or (2) has engaged in any willful misconduct in the discharge of his
duties on behalf of the Xxx Xxxx Group or (3) has misrepresented the financial
performance of the Xxx Xxxx Group; or
(ii) if the Executive shall at any time become or be unable
to properly perform his duties hereunder by reason of death, ill health,
accident or otherwise for a period of periods aggregating at least sixty (60)
days in any period of twelve consecutive calendar months; or
(iii) if the Company is generally unable to pay its debts as
they become due, or petitions or applies for the appointment of a trustee or
other custodian, liquidator or receiver for it, or commences or has commenced
against it any case or other proceeding relating to it under the Bankruptcy
Ordinance; or
(iv) be acceptance of the voluntarily termination of his
employment with the Company by the Executive.
(b) Upon termination of this Agreement, however occurring:
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(a) The Executive shall promptly return and deliver to the
Company all documents and records in his possession, custody or control which
in any way relate to the business of the Company. The Executive shall not be
entitled to retain copies, whether written or in electronic media form.
(b) The Executive shall immediately resign all positions
held, whether as a member of the Board or otherwise on and as of the date
specified in the notice of termination.
7. CONFIDENTIALITY AND NON-COMPETITION.
(a) NON-COMPETITION. During the term hereof, any extension
hereof and for the period of one year after termination of employment the
Executive will not in any country or place where the Company's business is
being carried on as of the date of termination, either on his own account or in
conjunction with or on behalf of any person, firm or company, carry on or be
engaged, concerned or interested directly or indirectly whether as shareholder,
director, employee, partner, agent or otherwise in carrying on any business in
competition with the Company's business (other than as a holder of not more
than five per cent (5%) of the issued shares or debentures of any company
listed on any recognized stock exchange).
(b) NON-SOLICITATION OF CUSTOMERS. During the term hereof,
any extension hereof and for the period of one year after termination of
employment the Executive will not either on his own account or in
conjunction with or on behalf of any other person, firm or company solicit or
entice away the customer of any person, firm, company or organization who shall
at any time within 1 year prior to the date of the termination of employment
have been a customer, client, identified prospective customer or client,
representative, agent or correspondent of the Company (including its
subsidiaries and affiliates) in connection with the Company's business or in
the habit of dealing with the Company (including its subsidiaries and
affiliates) in connection with the Company's business or enter into any
contract with or accept any business from any such person, firm, company or
organization in any way in the same or similar line of business to the
Company's business (including that of its subsidiaries and affiliates).
(c) NON-SOLICITATION OF EMPLOYEES. During the term hereof,
any extension hereof and for the period of one year after termination of
employment the Executive will not either on his own account or in conjunction
with or on behalf of any other person, firm or company employ, solicit or
entice away or attempt to employ, solicit or entice away any person who shall
at any time within 1 year prior to the date of the termination of employment
have been an employee of the Company (including its subsidiaries and
affiliates) in connection with their respective business, whether or not such
person would commit a breach of contract by reason of leaving such employment.
(d) NON-DISCLOSURE. The executive will not during the term
of this Agreement, any extension hereof and at any time before and after
termination of employment make use of or disclose or divulge to any third party
any information relating to the
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Company's business other than any information properly available to the public
or disclosed or divulged pursuant to an order of a court of competent
jurisdiction.
(e) PRIOR APPROVAL FOR OTHER ENGAGEMENT. During his employment
with the Company, the Executive will not in any country or place, either on his
own account or in conjunction with or on behalf of any person, firm or company,
actively carry on or be engaged, concerned or interested, directly or
indirectly whether as a shareholder, director, employee, partner, agent or
otherwise in carrying on any business (whether or not in competition with the
Company) without the prior written approval of the Board of the Company;
provided that this limitation shall not apply to (i) activities conducted on a
passive basis that are not competitive with the Company's business; and (ii)
duties of a non-substantial nature (in terms of demands on the Executive's time
or attention) which do not detract, in the reasonable opinion of the Board, from
the Executive's services to the Company.
(f) SEPARATE OBLIGATIONS. Each and every obligation under this
Paragraph shall be treated as a separate obligation and shall be severally
enforceable as such and in the event of any obligation or obligations being or
becoming unenforceable in whole or in part such parts as are unenforceable
shall be deleted from this Paragraph and any such deletion shall not affect the
enforceability of all such parts of this Paragraph as remain not so deleted.
(g) REASONABLENESS OF RESTRICTIONS; INVALIDITY. While the
restrictions contained in this Paragraph are considered by the parties to be
reasonable in all the circumstances it is recognized that restrictions of the
nature in question may fail for technical reasons unforeseen and accordingly it
is hereby agreed and declared that if any of such restrictions shall be
adjudged to be void as going beyond what is reasonable in all the circumstances
for the protection of the interests of the Company's business but would be
valid if part of the wording thereof were deleted or the periods thereof
reduced or the range of activities or area dealt with thereby reduced in scope
the said restriction shall apply with such modifications as may be necessary to
make it valid and effective.
(h) WAIVER. The Company may, in its sole and absolute discretion,
waive or give its conditional consent to any of the terms set forth in
paragraphs (a) through (e) above.
9. INVENTIONS, IMPROVEMENTS, OWNERSHIP OF INTELLECTUAL PROPERTY. All
inventions, improvements on inventions, or intellectual property of any kind
created by or in concert with the Executive during the term of his employment
(including any extensions thereof) shall be deemed to be for the benefit of the
Company. The Executive, in consideration of his employment hereunder, hereby
irrevocably assigns all right, title and interest in and to any such
intellectual property to the Company. The Executive agrees to execute such
documents and instruments from time to time as may be reasonably required to
vest such rights in the Company.
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10. NOTICES. Any notice or other communication required or permitted hereunder
shall be in writing and shall be deemed to have been duly given on the date of
delivery if delivered personally or seven (7) days after the date of mailing, if
mailed, by first class mail, postage prepaid, certified, registered or by
courier and addressed to the party to be given notice, as follows or to such
other address as may be notified in writing to the Company:
If to the Company: c/o Xxx Xxxxxxxxx
Law Offices
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
If to Executive: Chan Xxx Xxx
00/X Xxxxxxx Xxx Xxxx
Xxxxxxx Xxx
Xxxx Xxxx
11. ENTIRE AGREEMENT. This agreement constitutes the entire agreement of the
parties with respect to the subject matter hereof. No amendment or modification
hereof shall be valid or binding unless made in writing and signed by the party
against whom enforcement thereof is sought.
12. ASSIGNMENT. Neither this Agreement nor the right to receive payments
hereunder may be assigned by the Executive. This Agreement shall be binding
upon the Executive and upon the Company, and upon their respective successors
and assigns.
13. WAIVERS. No course of dealing nor any delay on the part of the Company in
exercising any rights hereunder shall operate as a waive of any such rights. No
waiver of any default or breach of this Agreement shall be deemed a continuing
waiver or a waiver of any other breach or default.
14. SEVERABILITY. If any clause, paragraph, section or part of this Agreement
shall be held or declared to be void, invalid, illegal or unenforceable for any
reason by any court of competent jurisdiction, such provision shall be
ineffective but shall not in any way invalidate or affect any other clause,
paragraph, section or part of this Agreement.
15. COUNTERPARTS. This Agreement may be executed in multiple counterparts, each
of which shall constitute an original, and all of which taken together shall
constitute one and the same agreement.
16. GOVERNING LAW; VENUE AND MODE OF DISPUTE RESOLUTION; FEES. The parties
hereby agree that disputes arising out of this Agreement shall be resolved by
binding arbitration in Hong Kong under the laws of Hong Kong, provided either
party hereto shall be entitled to seek equitable relief in the appropriate case
in the courts of Hong Kong. The prevailing party in any proceeding shall be
entitled to its attorney's fees and costs.
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IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
duly executed on the day and year first above written.
Xxx Xxxx Holdings Co. Ltd. The Executive
/s/ Xxxxxx X. Xxxx /s/ Chan Xxx Xxx
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By: Xxxxxx X. Xxxx Chan Xxx Xxx
Its: CEO
