EXHIBIT 10.26
Dated the 1st day of June, 2000
OVM INTERNATIONAL HOLDING CORPORATION
AND
CHING LUNG PO
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SERVICE AGREEMENT
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THIS AGREEMENT is made the 1st day of June, 2000.
BETWEEN
(1) OVM INTERNATIONAL HOLDING CORPORATION, a company incorporated in the
State of Nevada; and
(2) CHING LUNG PO (the "Director").
BY WHICH IT IS AGREED as follows:-
1. Purpose and interpretation
(A) This Agreement sets out the terms and conditions upon and subject
to which the Company agrees to employ the Director and the
Director agrees to serve the Company as a Chief Executive Officer
by providing the Company with the services hereinafter described.
(B) (1) In this Agreement, unless the context otherwise requires, the
following words and expressions bear the following meanings:-
"Appointment" the appointment of the Director as an executive
director of the Company as effected by Clause 2;
"Board" the board of directors for the time being of the
Company or the directors present at any meeting of
the Board duly convened and held;
"Business" the business carried on by the Group from time to
time;
"Group" the Company and its subsidiaries and associated
companies from time to time;
"$" Hong Kong dollars.
(2) References to Clauses and Schedule are references to the
clauses and schedule of or to this Agreement.
(3) References to the masculine gender include references to
the feminine gender and the neuter and vice versa.
(4) References to persons include references to individuals,
firms, companies, corporations and unincorporated bodies of
persons and vice versa.
(5) References to the singular number include references to the
plural and vice versa.
(6) The headings in this Agreement are for convenience only and
do not affect he interpretation hereof.
2. Appointment and duties
The Company shall employ the Director and the Director shall serve the
Company as a Chief Executive Officer subject to and upon the terms
hereinafter set out.
3. Director's basic obligation
The Director hereby undertakes with the Company during the term of this
Agreement to use his best endeavours to carry out his duties hereunder
and to protect and promote the interests of the Group.
4. Duration of the appointment
Subject to Clause 7, this Agreement shall be for a term of two years
commencing on 1st June, 2000 and shall continue thereafter unless and
until terminated by either the Company or the Director giving to the
other 3 months' notice in writing to determine the same, such notice to
expire at any time on or after 1st June, 2002.
5. Director's services
The Director shall:-
(1) devote substantially the whole of his time, attention and skill to
the discharge of duties of his office as a Chief Executive Officer
of the Company;
(2) faithfully and diligently perform such duties and exercise such
powers as are consistent with his office in relation to the
Company and/or the Group;
(3) in the discharge of such duties and in the exercise of such powers
observe and comply with all reasonable and lawful resolutions
regulations and directions from time to time made or given by the
Board;
(4) in pursuance of his duties hereunder perform such services for the
Group and (without further remuneration unless otherwise agreed)
accept such offices in the Group as the Board may from time to
time reasonably require provided the same are consistent with his
office;
(5) at all times keep the Board promptly and fully informed in
connection with the performance of such powers and duties;
(6) as part of, and in the normal course of, his duties under this
Agreement the Director will be concerned to carry on research into
and development of the processes, products, designs, equipment,
techniques and projects from time to time used, made or undertaken
by the Group or which can be used, made or undertaken by the
Group, and to invent, discover, design, develop or improve
processes, products, designs, equipment and techniques for the
benefit of and for use by the Group; and
(7) carry out his duties and exercise his powers jointly with another
director or executive as may from time to time be appointed by the
Board to act jointly with the Director and the Board may at any
time require the Director to cease performing or exercising any of
his duties or powers under this Agreement or pursuant to the
bye-laws of the Company; and
(8) perform and exercise his duties and powers under this Agreement in
any place in Hong Kong or any other part of the world as the Board
may request or as the interests, needs, business and opportunities
of the Company or other company in the Group will require or make
advisable.
6. Remuneration and reimbursement
(A) From and after the execution of this Agreement, the Director shall
receive during the term of this Agreement as stipulated herein:
(1) a base salary in the amount of HK$1,200,000 per annum, such
salary to accrue on a day to day basis and payable on a
monthly basis.
(2) bonuses as determined by the Board at its sole discretion
and in accordance with the Company policy.
(B) The Director shall be reimbursed all reasonable out-of-pocket
expenses (including expenses of entertainment subsistence and
travelling) properly and reasonably incurred by him on the Group's
business which expenses shall be evidenced in such manner as the
Board may require.
(C) The Director shall be entitled to participate in any and all stock
option, stock bonus, pension, profit sharing, retirement or other
similar plans adopted by the Company.
7. Termination of the appointment
(A) Without prejudice to the accrued rights (if any) or remedies of
either party under or pursuant to this Agreement:-
(1) the Director shall be entitled to terminate the Appointment
by 3 months' notice in writing to the Company if any money
payable by the Company to the Director under or pursuant to
this Agreement is not paid in full by the Company to the
Director within a period of 30 days from any written demand
by the Director for the payment thereof;
(2) the Company shall be entitled to terminate the Appointment
without any compensation to the Director:-
(a) by not less than 3 months' notice in writing given
at any time while the Director shall have been
incapacitated or prevented by reason of ill health,
injury or accident from performing his duties
hereunder for a period of or periods aggregating 90
days in the preceding 12 months, provided that if at
any time during the currency of a notice given
pursuant to this sub-paragraph the Director shall
provide a medical certificate satisfactory to the
Board to the effect that he has fully recovered his
physical and/or mental health and that no recurrence
of illness or incapacity can reasonably be
anticipated the Company shall withdraw such notice;
or
(b) by summary notice in writing if the Director shall
at any time:-
(1) commit any serious or persistent breach of
any of the provisions herein contained;
(2) be guilty of any grave misconduct or wilful
neglect in the discharge of his duties
hereunder or refuse to carry out any
reasonable and lawful order given to him by
the Board in the course of his Appointment;
(3) become bankrupt or have a receiving order
made against him or suspend payment or
compound with his creditors generally;
(4) become a lunatic or of unsound mind;
(5) absent himself from the meetings of the Board
during a continuous period of 3 months,
without special leave of absence from the
Board, and his alternate director (if any)
shall not during such period have attended in
his stead;
(6) be guilty of conduct tending to bring himself
or any company in the Group into disrepute;
(7) being a director of the Company or otherwise,
be prohibited by law from fulfilling his
duties hereunder;
(8) be convicted of any criminal offence (other
than an offence which in the reasonable
opinion of the Board does not affect his
position as a director of the Company); or
(9) improperly divulge to any unauthorized person
any business secret or secret details of the
organization, business or clientele of the
Group.
(B) If the Company becomes entitled to terminate the Appointment
pursuant to sub-clause 7(A)(2)(b) it shall be entitled (but
without prejudice to its right subsequently to terminate the
Appointment on the same or any other ground) to suspend the
Director without payment of salary for so long as it may think
fit.
(C) If the Director shall have refused or failed to agree to accept
without reasonable grounds an appointment offered to him on terms
no less favorable to him than the terms in effect under this
Agreement, either by a company which has acquired or agreed to
acquire the whole or substantially the whole of the undertaking
and assets of the Company or which shall own or has agreed to
acquire the whole or not less than 90% of the issued share capital
of the Company, the Director shall have no claim against the
Company by reason of the subsequent voluntary winding up of the
Company or of the disclaimer or termination of this Agreement by
the Company within 3 months after such refusal or failure to
agree.
(D) On the termination of the Appointment howsoever arising the
Director shall:-
(1) at any time and from time to time thereafter at the request
of the Company resign from office as a director of the
Company and all offices held by him in any company in the
Group and shall transfer without payment to the Company or
as the Company may direct any qualifying shares provided by
it and the Director hereby irrevocably appoints the Company
to be his attorney and in his name and on his behalf to
sign and do any documents or things necessary or requisite
to give effect thereto and a certificate in writing signed
by any director or by the secretary of the Company that any
instrument or act falls within the authority hereby
conferred shall be conclusive evidence that such is the
case and any third party shall be entitled to rely on such
certificate without further enquiry provided however that
such resignation or resignations shall be given and
accepted on the footing that it is or they are without
prejudice to any claims which the Director may have against
any such company or which any such company may have against
the Director arising out of this Agreement or of the
termination of the Appointment;
(2) forthwith deliver to the Company all books, documents,
papers, materials, credit cards and other property of or
relating to the business of the Group which may then be in
his possession or under his power or control; and
(3) not at any time thereafter represent himself still to be
connected with the Company or any other company in the
Group.
(E) Save as expressly provided herein, neither party may terminate
this Agreement. No delay and forbearance by the Company in
exercising any such right of termination in Clause 7(A)(2) shall
constitute a waiver of that right.
8. Restrictions on the Director
(A) During the Appointment, the Director shall not be directly or
indirectly engaged in or concerned with or interested in any
business which is in any respect in competition with or similar to
the Business.
(B) The Director shall not either during or after the termination of
the Appointment without limit in point of time except authorized
or required by his duties:-
(1) divulge or communicate to any person except to those of the
officials of the Group whose province it is to know the
same; or
(2) use for his own purpose or for any purpose other than that
of the Group; or
(3) through any failure to exercise all due care and diligence
cause any unauthorized disclosure of any secret
confidential or private information:-
(a) relating to the dealings, organization, business,
finance, transactions or any other affairs of the
Group or its clients or customers; or
(b) relating to the working of any process or invention
which is carried on or used by any company in the
Group or which he may discover or make during his
Appointment; or
(c) in respect of which any company within the Group is
bound by an obligation of confidence to any third
party
but so that these restrictions shall cease to apply to any
information or knowledge which may become available to the
public generally without requiring a significant
expenditure of labour skill or money.
(C) The Director agrees that, for a period of six months after the
expiry or the termination of the Appointment, he will not:-
(1) engage or be engaged whether directly or indirectly in any
business which is in competition with or similar to the
Business or take employment with any person, firm, company
or organization engaged in or operating such business or
assist any such person, firm, company or organization with
technical, commercial or professional advice in relation to
such business;
(2) either on his own account or for any person, firm, company
or organization solicit or entice or endeavour to solicit
or entice away from any company within the Group any
director, manager or servant of any company in the Group
whether or not such person would commit any breach of his
contract of employment by reason of leaving the service of
the relevant company in the Group;
(3) directly or indirectly employ any person who has at any
time during the currency of the Appointment been a
director, manager or servant of or consultant to any
company in the Group and who by reason of such employment
is or may be likely to be in possession of such information
which if that person was the Director would be covered by
the confidential restrictions of this Clause 8; and
(4) either on his own account or for any person, firm, company
or organization solicit business from any person, firm,
company or organization which at any time the currency of
the Appointment has dealt with the Company or any other
company in the Group or which on the termination of the
Appointment is in the process of negotiating with the
Company or any such company in the Group in relation to the
Business.
(D) Since the Director may obtain in the course of the Appointment by
reason of services rendered for or offices held in any other
company in the Group knowledge of the trade secrets or other
confidential information of such company, the Director hereby
agrees that he will at the request and cost of the Company or such
other company enter into a direct agreement or undertaking with
such company whereby he will accept restrictions corresponding to
the restrictions herein contained (or such of them as may be
appropriate in the circumstances) in relation to such products and
services and such area and for such period as such company may
reasonably require for the protection of its legitimate interests.
(E) All notes, memoranda, records and writings made by the Director in
relation to the Business or concerning any of its dealings or
affairs or the dealings or affairs of any clients or customers of
the Group shall be and remain the property of the Group and shall
be handed over by him to the Company (or to such other company in
the Group as the case may require) from time to time on demand and
in any event upon his leaving the service of the Company and the
Director shall not retain any copy thereof.
(F) While the restrictions contained in this Clause 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 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
but would be valid if part of the wording thereof were deleted or
the periods (if any) thereof were reduced the said restriction
shall apply with such modifications as may be necessary to make it
valid and effective.
9. Copyright and design right
(A) If during his employment hereunder the Director in the course of
his normal duties or other duties specifically assigned to him
(whether or not during normal working hours) wither alone or in
conjunction with any other person
(i) originates any design (whether registrable or not) or other
work in which copyright or design right may subsist and/or
(ii) makes, discovers or produces any invention, process or
development
he shall forthwith disclose the same to the Company and shall
(subject to sub-clauses 9(B), 9(C) and 9(D)) regard himself in
relation thereto as a trustee for the Company.
(B) The Director hereby agrees to assign wholly and absolutely the
copyright, future copyright, design right and future design right
and other proprietary rights if any for the full term thereof
throughout the world in respect of all copyright works written,
originated, conceived or made by the Director during the period of
his employment to the Company to hold absolutely including the
right to xxx for damages for past infringements.
(C) The Director acknowledges that the Company shall be treated as the
original proprietor of a design, where such design is created by
him in the course of his employment.
(D) Any such invention, process or development will be the absolute
property of the Company and the Director will, if and when
required by the Company (whether during the continuance of his
employment or afterwards) at its expense, apply or join with the
Company in applying, for letter patent or other protection in any
part of the world for any invention process or development.
(E) The Director agrees and undertakes that he will execute such deeds
or documents and do all such acts and things as may be necessary
or desirable to substantiate and maintain the rights of the
Company in respect of the matters referred to in sub-clauses 9(A)
to 9(D).
(F) The Director irrevocably appoints the Company as his attorney in
his name and on his behalf to execute all documents and do all
things required in order to give full effect to the provisions of
this clause.
10. Holidays
The Director shall (in addition to normal public holidays) be entitled,
at the discretion of the Company to 21 working days paid holiday in each
year during the continuance of the Appointment to be taken as such time
or times as the Board may approve.
11. Waiver
(A) Time is the essence of this Agreement but no failure or delay on
the part of either party to exercise any power, right or remedy
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise by either party of any power, right or remedy
preclude any other or further exercise thereof or the exercise of
any other power right or remedy by that party.
(B) The remedies provided herein are cumulative and are not exclusive
of any remedies provided by law.
12. Notices
All notices, requests, demands, consents or other communications to or
upon the parties under or pursuant to this Agreement shall be in writing
addressed to the relevant party at such party's address set out below (or
at such other address as such party may hereafter specify to the other
party) and shall be deemed to have been duly given or made:-
(i) in the case of a communication by letter 10 days (if overseas) or
48 hours (if local) after despatch or, if such letter is delivered
by hand, on the day of delivery;
(ii) in the case of a communication by telex or facsimile, when sent.
The Company's address: Xxxx 0000, 00/X., Xxxx Xxxxx,
Xxxx Tak Centre, 000 Xxxxxxxxx Xxxx X.,
Xxxx Xxxx.
The Director's address: Xxxx 0000, Xxxxx X, Xxxxxxx Xxxxxxx,
Xxxxxxx Bay, Kowloon, Hong Kong
13. Assignability
This Agreement shall be binding upon and enure to the benefit of each
party hereto and its successors and assigns and personal representatives
(as the case may be), provided always that the Director may not assign
his obligations and liabilities under this Agreement without the prior
written consent of the Company.
14. Relationship
None of the provisions of this Agreement shall be deemed to constitute a
partnership or joint venture between the parties for any purpose.
15. Amendment
This Agreement may not be amended, supplemented or modified except by a
written agreement or instrument signed by or on behalf of the parties
hereto.
16. Severability
Any provision of this Agreement prohibited by or unlawful or
unenforceable under any applicable law actually applied by any court of
competent jurisdiction shall, to the extent required by such law, be
severed from this Agreement and rendered ineffective so far as is
possible without modifying the remaining provisions of this Agreement.
Where, however, the provisions of any such applicable law may be waived,
they are hereby waived by the parties to the full extent permitted by
such law to the end that this Agreement shall be a valid and binding
agreement enforceable in accordance with its terms.
17. Law and jurisdiction
This Agreement shall be governed by and construed in all respects in
accordance with the laws of the State of Nevada and the parties hereby
submit to the non-exclusive jurisdiction of the courts of the State of
Nevada.
IN WITNESS whereof this Agreement has been duly executed the day and year
first above written.
OVM INTERNATIONAL HOLDING CORPORATION
By: /s/ Deng Xxxx Xxxxx
--------------------------------
Name : Xxxx Xxxx Qiong
Title : Chief Financial Officer
/s/ Ching Lung Po
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Ching Lung Po
