EMPLOYMENT AGREEMENT
EXECUTION
VERSION
Exhibit 4.5d
THIS
AGREEMENT is made and entered into as of the 19th day of July, 2007, by and
between Grand Toys International Limited, a limited company organized under
the
laws of Hong Kong, having its principal office at Xxxx XX000, Xxxxx XX0,
Xxxxxxxxx Xxxxxx Xxxxx, 00 Xxxx Xxxx, Xxxxxxxxxxx, Xxxxxxx, Xxxx Xxxx (“Grand”),
and Xxxxx X.X. Xxxxxx, an individual residing at 64C Xxxxxx Xxx Wan, Clearwater
Bay, Sai Kung, New Territories, Hong Kong (“Employee”).
WHEREAS,
Grand is desirous of employing Employee as its executive vice president and
chief financial officer, and Employee is willing to serve Grand in such
capacity, all upon the terms and subject to the conditions hereinafter set
forth.
NOW,
THEREFORE, in consideration of the mutual covenants and agreements herein
contained, the parties hereto, intending to be legally bound, agree as
follows:
1. DEFINITIONS.
The
following terms, when used in capitalized form in this Agreement, shall have
the
meanings attributed to them in this Section:
(a) “2004
Plan” means the 2004 stock option plan adopted by Grand, as amended from time to
time.
(b) “Change
in Control” means the occurrence of any one of the following
events:
(i) individuals
who, as of the date of the Agreement, constitute the Board (the “Incumbent
Directors”) cease for any reason to constitute at least a majority of the Board,
provided that any person becoming a director subsequent to the date of the
Agreement, whose election or nomination for election was approved by a vote
of
at least two-thirds of the Incumbent Directors then on the Board (either by
a
specific vote or by approval of the proxy statement of Grand in which such
person is named as a nominee for director, without written objection to such
nomination) shall be deemed to be an Incumbent Director; provided,
however,
that no
individual initially elected or nominated as a director of Grand as a result
of
an actual or threatened election contest with respect to directors or as a
result of any other actual or threatened solicitation of proxies or consents
by
or on behalf of any person other than the Board shall be deemed to be an
Incumbent Director;
(ii) any
“person” (as such term is defined in Section 3(a)(9) of the U.S. Securities
Exchange Act of 1934, as amended (the “Exchange Act”) and as used in
Sections 13(d)(3) and 14(d)(2) of the Exchange Act) becomes a “beneficial
owner” (as defined in Rule 13d-3 under the Exchange Act), directly or
indirectly, of securities of Grand representing 50% or more of the combined
voting power of Grand’s then outstanding securities eligible to vote for the
election of the Board (the “Grand Voting Securities”) or any person who
beneficially owns 50% of the Grand Voting Securities increases their beneficial
ownership by more than 5%; provided,
however,
that
the event described in this paragraph (ii) shall not be deemed to be a
Change in Control by virtue of any of the following acquisitions: (A) by
Grand or any member of the Grand Group, (B) by any employee benefit plan
(or related trust) sponsored or maintained by Grand or any member of the Grand
Group, (C) by any underwriter temporarily holding securities pursuant to an
offering of such securities, (D) pursuant to a Non-Qualifying Transaction
(as defined in paragraph (iii)), or (E) pursuant to any acquisition by
Employee or any group of persons including Employee (or any entity controlled
by
Employee or any group of persons including Employee);
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(iii) the
consummation of a merger, consolidation, statutory share exchange, merger or
similar form of corporate transaction involving Grand or any member of the
Grand
Group that requires the approval of Grand’s stockholders, whether for such
transaction or the issuance of securities in the transaction (a “Business
Combination”), unless immediately following such Business Combination:
(A) more than 50% of the total voting power of (x) the corporation
resulting from such Business Combination (the “Surviving Corporation”), or
(y) if applicable, the ultimate parent corporation that directly or
indirectly has beneficial ownership of at least 95% of the voting securities
eligible to elect directors of the Surviving Corporation (the “Parent
Corporation”), is represented by Grand Voting Securities that were outstanding
immediately prior to such Business Combination (or, if applicable, is
represented by shares into which such Grand Voting Securities were converted
pursuant to such Business Combination), and such voting power among the holders
thereof is in substantially the same proportion as the voting power of such
Grand Voting Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee benefit plan
(or related trust) sponsored or maintained by the Surviving Corporation or
the
Parent Corporation or an existing Grand shareholder, with greater than 50%
beneficial ownership of the Grand Voting Securities prior to the Business
Combination, whose percentage beneficial ownership compared to the other Grand
shareholders in existence immediately prior to the Business Combination does
not
change on consummation of the Business Transaction), is or becomes the
beneficial owner, directly or indirectly, of 50% or more of the total voting
power of the outstanding voting securities eligible to elect directors of the
Parent Corporation (or, if there is no Parent Corporation, the Surviving
Corporation) and (C) at least a majority of the members of the board of
directors of the Parent Corporation (or, if there is no Parent Corporation,
the
Surviving Corporation) following the consummation of the Business Combination
were Incumbent Directors at the time of the Board’s approval of the execution of
the initial agreement providing for such Business Combination (any Business
Combination which satisfies all of the criteria specified in (A), (B) and (C)
above shall be deemed to be a “Non-Qualifying Transaction”); or
(iv) the
stockholders of Grand approve a plan of complete liquidation or dissolution
of
Grand or the consummation of a sale of all or substantially all of Grand’s
assets.
Notwithstanding
the foregoing, a Change in Control of Grand shall not be deemed to occur solely
because any person acquires beneficial ownership of more than 50% of the Grand
Voting Securities as a result of the acquisition of Grand Voting Securities
by
Grand which reduces the number of Grand Voting Securities outstanding; provided,
that if after such acquisition by Grand such person becomes the beneficial
owner
of additional Grand Voting Securities that increases the percentage of
outstanding Grand Voting Securities beneficially owned by such person, a Change
in Control of Grand shall then occur.”
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(c) “Dollars”
and “US$” means United States dollars.
(d) “Good
Reason” shall mean the occurrence after a Change in Control of any of the
following events without the Employee’s express written consent: (i) the
assignment to the Employee of duties inconsistent with his position and status
as an executive of the Grand Group, or a substantial alteration in the nature,
status or prestige of the Employee’s responsibilities with the Grand Group from
those in effect immediately prior to such Change in Control; or (ii) a
reduction in the Employee’s base salary or bonus at the rate most recently
approved by the Board prior to the occurrence of such Change in Control; or
(iii) any other material adverse change in the terms or conditions of the
Employee’s employment hereunder following the occurrence of such Change in
Control.
(e) “Grand
Group” means Grand and any other corporation or other entity which at the
relevant time is more than fifty percent (50%) owned, directly or indirectly,
by
Grand.
(f) “Hong
Kong” means the Hong Kong Special Administrative Region of the People’s Republic
of China.
(g) “Termination”
means, according to the context, the termination of this Agreement or the
cessation of rendering employment services by Employee.
2. EMPLOYMENT.
Grand
agrees to employ Employee, and Employee agrees to be employed by Grand, upon
the
terms and subject to the conditions of this Agreement.
3. TERM.
The
term
of this Agreement shall be for a period of two (2) years commencing as of
July 6, 2007, unless sooner terminated as hereinafter provided (the
“Term”).
4. DUTIES;
EFFORTS; INDEMNIFICATION.
(a) During
the Term of this Agreement, Employee shall serve as Executive Vice President
-
Finance of Grand and, beginning on September 1, 2007, as Chief Financial
Officer, reporting directly to the Chief Executive Officer. Employee shall
be
responsible for the management of financial and accounting matters affecting
the
Grand Group, including without limitation the preparation of financial
statements and compliance with applicable securities laws and regulations,
as
well as such other duties as are commensurate with such position. Employee
shall
also perform such executive duties as may be assigned to him from time to time
by the Board of Directors of Grand (the “Board”) or the Chief Executive Officer
so long as such duties are not inconsistent with the duties commensurate with
a
principal financial officer of a company of comparable size. Employee shall
perform his duties under this Agreement principally in Hong Kong.
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(b) Employee
agrees that Employee shall comply with all of the applicable policies, rules
or
codes of conduct generally in effect for employees of Grand or the Grand Group
during the Term of his employment.
(c) Employee
shall devote all of his business time, attention and energies, on a full time
and exclusive basis, to the business of the Grand Group, shall use his best
efforts to advance the best interests of Grand, and shall not during the Term
be
engaged in any other business activities, whether or not such business
activities are pursued for gain, profit or other pecuniary advantage, without
Board consent; provided,
however,
that,
it shall not be a violation of this Agreement for Employee to (i) serve on
corporate, civic or charitable boards or committees, or (ii) manage passive
personal investments, in either case so long as any such activities do not
interfere with the performance of his responsibilities as an employee of Grand
in accordance with this Agreement.
5. COMPENSATION
AND BENEFITS.
(a) Base
Salary.
Grand
agrees to pay Employee, and Employee agrees to accept from Grand, a salary
at
the rate of US$375,000 per annum (“Base Salary”) payable in accordance with
Grand’s payroll practices for its executive employees to Employee’s bank account
in Hong Kong as provided in writing by Employee. Employee shall receive annual
salary reviews by the Board with a view to ensuring that it remains commensurate
with the time and effort required for the discharge of his responsibilities
pursuant to this Agreement, provided that such salary shall not be reduced
below
the Base Salary. After a Change in Control, Employee’s salary shall not be
reduced below the level immediately prior to the Change in Control. For any
period during the Term that Employee is working on a basis other than full-time,
the Base Salary shall be adjusted pro rata for the reduced work schedule, as
mutually agreed by Employee and Grand.
(b) Executive
Bonus.
Employee will participate in any Grand executive bonus program that is
established by the Board.
(c) Provident
Fund.
Grand
will contribute to a provident fund for the benefit of Employee on such terms
and conditions to be agreed between Grand and Employee.
(d) ADSs
Options.
In
addition to the amounts of compensation provided in subsections (a), (b) and
(c)
of this Section 5, Employee shall be eligible for the following incentive
compensation:
(i) Grand
shall grant to Employee the following option to purchase American Depositary
Shares (“ADSs”) representing beneficial ownership in ordinary shares in the
capital of Grand at an exercise price per ADS which shall be equivalent to
the
closing market price thereof on the last trading day prior to the date of the
grant on which securities markets in the United States are open, subject to
the
terms and conditions of this Section 5 and the 2004 Plan; provided,
however,
that
each such grant shall be subject to the condition that Employee continues to
be
employed in good standing by Grand Group through the relevant date of grant.
(1) First,
300,000 ADSs options shall be granted as of the date of this Agreement; and
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(2) Second,
300,000 ADSs options shall be granted on the first anniversary of the date
of
the first grant.
Unless
otherwise provided herein or in the 2004 Plan, the ADSs options shall become
vested as to ADSs representing 100,000 shares on each of the first, second
and
third anniversaries of each grant and shall expire on the tenth anniversary
of
the relevant date of grant.
(ii) The
number of ADSs subject to the ADS Options will be adjusted for stock splits
and
reverse splits; provided that such number of ADSs shall not be adjusted if
Grand
should otherwise change or modify its capitalization, including but not limited
to the issuance by Grand of new securities (including options or convertible
securities), ESOP’s or other employee stock plans. It is the intent of the
parties that the ADSs subject to the ADS options shall be subject to dilution,
except for stock splits and reverse splits.
(iii) Upon
the
occurrence of a Change in Control, Termination by Grand without Cause,
Disability of Employee or non-renewal of terms of this Agreement after expiry,
all of Employee’s then unvested ADS Options in Grand shall vest and all
outstanding ADS Options shall become immediately exercisable only for a period
of 90 days from the date of such occurrence. If Employee’s employment is
terminated by Grand without Cause after a definitive agreement for a transaction
that would constitute a Change in Control has been approved by the shareholders
of Grand, but before such transaction is consummated, Employee’s ADS Options in
Grand shall vest on the date of such termination without Cause. Income realized
by Employee as a result of the acceleration of vesting of equity compensation
or
otherwise resulting from a Termination/Change in Control is specifically paid
in
consideration of post-employment restrictions of Sections 9 and 10
hereunder.
(iv) In
the
event of the termination of Employee’s employment by Grand for Cause or by
Employee voluntarily (other than as a result of Grand’s material breach of this
Agreement), all of Employee’s then outstanding unvested ADS Options shall be
terminated and shall be null and void, and any vested options shall become
exercisable only for a period of 90 days from the date of
termination.
(v) Except
as
otherwise set forth herein, the terms and conditions of the 2004 Plan shall
govern the ADS Options.
(e) Paid
Leave.
Employee shall be entitled to five (5) weeks paid leave during each year of
this
Agreement taken at such times as mutually convenient to Employee and Grand
Group.
(f) Out-of-Pocket
Expenses.
Grand
shall promptly reimburse Employee for the reasonable expenses incurred by him
in
the performance of his duties hereunder in accordance with Grand’s policies in
effect from time to time, including, without limitation, those incurred in
connection with business related travel or entertainment, provided that Employee
provides proper documentation setting forth information sufficient to
establish:
(i) the
amount, date, and place of each such expense;
(ii) the
business reason for each such expense and the nature of the business benefit
derived or expected to be derived as a result thereof; and
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(iii) the
names, occupations, addresses, and other information sufficient to establish
the
business relationship to Grand Group of any person who was entertained by
Employee.
6. TERMINATION.
(a) Termination
without Cause.
After
the first anniversary of Employee’s employment with Grand, i.e., July 6,
2008, either party may terminate the Agreement without Cause (as defined below)
upon six months’ written notice.
(b) Termination
for Cause.
Grand
shall have the right to terminate Employee’s employment for Cause. For the
purpose of this section, the term “Cause” shall mean:
(i) breach
of
or failure to comply with any of the material terms of this Agreement including,
but not limited to, Sections 4, 9,10, or 11 of this Agreement;
(ii) failure
to perform his duties under this Agreement, including refusing to carry out
the
reasonable written instructions of the Board or deliberately and internationally
disregarding the lawful instructions from the Board, in either case which
instructions are consistent with the responsibilities and duties of Employee
contemplated by this Agreement;
(iii) material
breach by Employee of a fiduciary obligation to any member of Grand
Group;
(iv) intentional
commission by Employee of any act or omission to perform any act (excluding
the
omission to perform any act attributable to Employee’s Disability) which results
in or is intended to result in material adverse consequences to any member
of
Grand Group or which results in or is intended to result in substantial personal
enrichment of Employee at the expense of any member of Grand Group;
(v) any
attempt by Employee to assign or delegate this Agreement or any of the rights,
duties, responsibilities, privileges or obligations hereunder without the prior
written consent of Grand (except in respect of any delegation by Employee of
his
employment duties hereunder to other employees of Grand Group in accordance
with
its usual business practice);
(vi) commission
of any act of fraud, larceny, misappropriation of funds or embezzlement or
conviction of a felony or a crime of moral depravity under the laws of the
United States or Hong Kong;
(vii) death
of
Employee;
(viii) declaration
by a court that Employee is insane or incompetent to manage his business
affairs; or
(ix) the
filing of any petition or other proceeding seeking to find Employee bankrupt
or
insolvent.
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Termination
for Cause shall become effective upon a resolution adopted by the Board finding
an occurrence of an event giving rise to Cause, except that in the case of
subsections (i), (ii), (iii), (iv) and (v), Employee shall receive thirty (30)
days’ advance written notice that the Board intends to meet to consider
Employee’s termination and specifying the actions constituting Cause, Employee
shall have the opportunity to cure the conduct constituting Cause during such
thirty (30) day period. Any act, or failure to act, based upon authority given
pursuant to a resolution duly adopted by the Board or based upon the advice
of
counsel for Grand shall be conclusively presumed to be done, or omitted to
be
done, by Employee in good faith and in the best interests of Grand.
(c) Termination
for Disability.
Grand
shall have the right to terminate Employee’s employment as a result of
Employee’s “Disability.” For the purposes of this Agreement, a termination for
Disability shall occur:
(i) immediately
after the Board has provided a written termination notice to Employee supported
by a written statement from a reputable independent physician selected by Grand
to the effect that Employee shall have become so incapacitated as to be unable
to resume, within twelve (12) weeks, his employment hereunder by reason of
physical or mental illness or injury; or
(ii) upon
rendering of a written termination notice by Grand after Employee has been
unable to substantially perform his duties hereunder for a cumulative period
of
twelve (12) weeks in any twelve (12) month period by reason of physical or
mental illness or injury.
Employee
agrees to make himself available and to cooperate in any reasonable examination
by a reputable independent physician selected by Grand for the purpose of a
termination pursuant to Section 6(c)(i).
(d) Termination/Change
in Control.
Employee
may terminate this Agreement if Employee has Good Reason for such Termination
following a Change in Control. Such Termination by Employee is hereinafter
referred to as Termination/Change in Control.
7. EFFECT
OF TERMINATION.
(a) Termination
for Cause by Grand, by Employee voluntarily or upon expiration of the
Term.
In the
event that Employee’s employment is terminated by Grand for Cause or by Employee
voluntarily (other than as a result of Grand’s material breach of this
Agreement) or upon expiration of the Term, the Employee shall not be entitled
to
receive any further compensation and benefits under the provisions of this
Agreement after the effective date of such Termination.
(b) Termination
without Cause by Grand, for Disability, or Termination/Change in
Control.
In the
event of termination without Cause by Grand, Disability of Employee or
Termination/Change in Control, (i) Grand will continue to pay Employee his
Base Salary until the earlier of six months from the effective date of
Termination or the expiration of the Term of this Agreement, and
(ii) Employee’s ADS options will be treated as set forth in
Section 5(d) hereof.
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(c) This
Section 7 sets forth the entire obligation of Grand with respect to the
termination of Employee’s employment with Grand, and Employee acknowledges that
upon the Termination of his employment, he shall not be entitled to any payments
or benefits which are not explicitly provided herein.
8. RETURN
OF RECORDS AND PROPERTY.
Upon
Termination of Employee’s employment with Grand for any reason, Employee shall
deliver promptly to Grand all records, manuals, books, blank forms, documents,
letters, memoranda, notes, notebooks, reports, computer disks, computer
software, computer programs (including source code, object code, on-line files,
documentation, testing materials and plans and reports), designs, drawings,
formulae, data, tables or calculations or copies thereof, which are the property
of Grand or which relate in any way to the business, products, practices or
techniques of Grand, and all other property, trade secrets and confidential
information of Grand, including, but not limited to, all tangible, written,
graphical, machine readable and other materials (including all copies) which
in
whole or in part contain any trade secrets or Confidential Information of Grand
which in any of these cases are in Employee’s possession or under Employee’s
control.
9. RESTRICTION
OF COMPETITION; NON-SOLICITATION; INTERFERENCE.
(a) As
a
significant inducement to Grand to enter into and perform its obligations under
this Agreement, during the Term and for a period of one year after expiration
or
any Termination (other than in the event of a Termination/Change in Control)
of
such employment for any reason (either by Employee or Grand), with or without
cause, voluntarily or involuntarily (the Term and the additional year together
“Prohibition Period”), Employee agrees that
(i) he
will
not, directly or indirectly, engage in, be employed by or become affiliated
with
any person or entity which offers, develops, performs or is engaged in services,
products or systems which are competitive with the business of Grand Group
or
any other products, services or systems hereafter developed, produced or offered
by Grand Group, at or prior to the date of the termination of Employee’s
employment (“Grand Business”), anywhere Grand Group engages in business
activities during the period of Employee’s employment with Grand;
(ii) during
the Prohibition Period, he will not, directly or indirectly, become an owner
or
member, to the extent of an ownership interest of five percent (5%) or more,
of
a joint venture, partnership, corporation or other entity, or a consultant,
employee, agent, officer or director of a corporation, joint venture,
partnership or other entity, which is competitive with, directly or indirectly,
the Grand Business; and
(iii) if
at any
time during the Prohibition Period Employee accepts new employment of or becomes
affiliated with a third party, Employee shall immediately notify Grand of the
identity and business of Employee’s new employer or affiliation.
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Without
limiting the foregoing, Employee’s obligation to give notice under this
Section 9(a) shall apply to any business ventures in which Employee
proposes to engage, even if not with a third-party employer (such as, without
limitation, a joint venture, partnership or sole proprietorship). Employee
hereby consents to Grand notifying any such new employer or business venture
of
the terms of the covenants in this Section 9.
(b) During
the Prohibition Period, Employee shall not (i) induce or attempt to induce
any Grand Group employee to leave Grand Group’s employ, or in any way interfere
adversely with the relationship between any such employee and Grand Group;
(ii) induce or attempt to induce any Grand Group employee to work for,
render services to, provide advice to, or supply Grand Group confidential
business information or trade secrets to any third person, firm or corporation;
(iii) employ, or otherwise pay for services rendered by, any Grand Group
employee in any business enterprise with which Employee may be associated,
connected or affiliated; or (iv) induce or attempt to induce any customer,
supplier, licensee, licensor or other business relation of Grand Group to cease
doing business with Grand Group, or in any way interfere with the then existing
business relationship between any such customer, supplier, licensee, licensor
or
other business relation and Grand Group.
10. PROTECTION
OF CONFIDENTIAL INFORMATION AND PROPRIETARY INFORMATION.
(a) Employee
understands and agrees that he will be exposed to (or have access to)
confidential information, knowhow, knowledge, data, techniques, computer
software and hardware, and trade secrets of Grand Group or related to the Grand
Business, including, without limitation, customer or supplier requirements,
notes, drawings, writings, designs, plans, specifications, records, charts,
methods, procedures, systems, price lists, financial data, records, and customer
or supplier lists (collectively “Confidential Information”). Notwithstanding the
above, the following shall not be considered “Confidential Information” within
the meaning of this section: (i) information known to Employee or to the
public at the date of this Agreement; and (ii) information which hereafter
becomes known to the public through no fault of Employee. Accordingly, except
as
permitted or required in the performance of his duties for Grand Group, Employee
agrees not to disclose, divulge, make public, utilize, communicate or use,
whether for his own benefit or for the benefit of others, either directly or
indirectly, any Confidential Information relating to the Grand Business unless
specifically authorized in writing by Grand to do so. In addition, Employee
shall comply with the terms of any confidentiality agreement by which Grand
is
bound to a third party.
(b) Employee
shall promptly communicate and disclose to Grand Group all information,
inventions, improvements, discoveries, knowhow, methods, techniques, processes,
observations and data (“Proprietary Information”) obtained, developed, invented
or otherwise discovered by him in the course of this employment. All written
materials, records, computer programs or data and documents made by Employee
or
coming into his possession during the employment period concerning any
Proprietary Information used or developed by Grand Group, or by Employee, shall
be the sole exclusive property of Grand Group. Employee shall have no right,
title or interest therein notwithstanding that he may have purchased the medium
on which such Proprietary Information is recorded.
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(c) Upon
Termination, Employee shall not take with him any of the Confidential
Information or Proprietary Information. Upon Termination, or at any time upon
the request of Grand, Employee shall promptly deliver all Confidential
Information and Proprietary Information, and all copies thereof, to Grand Group
with no cost or charge to Grand Group. Upon request by Grand, Employee shall
promptly execute and deliver any documents necessary or convenient to evidence
ownership of the Confidential Information and Proprietary Information by Grand
Group, or the transfer and assignment of the Confidential Information and
Proprietary Information to Grand Group without cost or charge. The provisions
of
this Section 10 shall survive any Termination of this
Agreement.
11. Other
Agreements.
Employee
hereby represents that he is not bound by the terms of any agreement with any
previous employer, or with any other party, that would impair his right or
ability to enter the employment of Grand or perform fully his obligations
pursuant to this Agreement. Employee further represents and warrants that his
performance of all the terms of this Agreement and as an executive of Grand
does
not and will not breach any agreement to keep in confidence proprietary
information, knowledge or data acquired by him in confidence or in trust prior
to his employment with Grand.
12. Successors
and Assigns.
This
Agreement shall inure to the benefit of and be binding upon Grand and its
successors and assigns, including but not limited to any corporation, person
or
other entity which may acquire all or substantially all of the assets and
business of Grand or any corporation with or into which it may be consolidated
or merged. This Agreement shall not be assignable, in whole or in part, by
any
party without the written consent of the other party, except that (i) Grand
may assign its rights and obligations to another present or future member of
Grand Group and (ii) Employee may, without the prior consent of any member
of Grand Group, assign to his spouse, or to an immediate family member, proceeds
of payments resulting from his death or a disability which, in either case,
occurs after a termination of this Agreement. After any assignment by Grand,
Grand shall be discharged from all further liability hereunder and such assignee
shall thereafter be deemed to be Grand for the purposes of all provisions of
this Agreement including this Section 12.
13. COUNTERPARTS.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall constitute one and the same
instrument.
14. GOVERNING
LAW AND FORUM.
This
Agreement shall be governed by and construed in accordance with the laws of
Hong
Kong without reference to the choice of law principles thereof. The parties
agree that any dispute or litigation in anyway relating to this Agreement or
to
employee’s employment by Grand, including, but not limited to, the termination
of this Agreement or of Employee’s employment will be subject to the exclusive
jurisdiction of the Hong Kong courts.
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15. ENTIRE
AGREEMENT.
This
Agreement constitutes the entire agreement between the parties and supersedes
all prior agreements and understandings, whether written or oral, relating
to
the subject matter of this Agreement.
16. VALIDITY
OF PROVISIONS.
Should
any provision(s) of this Agreement be void or unenforceable in whole or in
part,
the remainder of this Agreement shall not in any way be affected thereby, and
such provision(s) shall be modified or amended so as to provide for the
accomplishment of the provision(s) and intentions of this Agreement to the
maximum extent possible.
17. MODIFICATIONS
OR DISCHARGE.
This
Agreement shall not be deemed waived, changed, modified, discharged or
terminated in whole or in part, except as expressly provided for herein or
by
written instrument signed by all parties hereto.
18. NOTICES.
Any
notice or other communications required or permitted hereunder shall be in
writing and shall be deemed effective (i) upon delivery, if delivered by
hand and followed by notice by mail or facsimile transmission, or electronic
mail, (ii) three (3) days after the date of deposit in the mails, if mailed
by certified or registered mail (return receipt requested), or (iii) on the
next business day, if mailed by an overnight mail service to the parties or
sent
by facsimile transmission,
If
to
Grand:
Grand
Toys International Xxxxxxx
Xxxx
XX000, Xxxxx XX0 Xxxxxxxxx
Golden
Plaza 00 Xxxx Xxxx
Xxxxxxxxxxx
Xxxx Xxxxxxx, Xxxx Xxxx
Attention:
Xxxx Xxxxx
Facsimile
No.: (000) 0000 0000
with
copies to:
Xxxxxx &
Xxxxxxx
Xxx
Xxxxxxx Xxxxx, Xxxxx
0000
00
Xxxxxxxxx
Xxxx
Xxxx
Attention:
Xxxxxx X. Xxxxxx, Esq.
Facsimile
No.: (000) 0000-0000
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If
to
Employee:
Xx.
Xxxxx
X.X. Xxxxxx
64C
Xxxxxx Xxx Wan, Xxxxxxxxxx Xxx,
Xxx
Xxxx,
Xxx Xxxxxxxxxxx, Xxxx Xxxx
|
Telephone:
|
000-0000-0000
|
|
Telefax:
|
000-0000-0000
|
19. NUMBER;
GENDER.
In
this
Agreement, the masculine shall include the feminine and neuter and vice versa,
and the singular shall include the plural and vice versa, as the context may
reasonably require or permit.
20. INDEMNIFICATION.
If
any
disputes shall arise under this Agreement involving the Termination of
Employee’s employment with Grand, Grand shall indemnify Employee, on a current
basis, for all reasonable legal fees and expenses, if any, incurred by Employee
in connection with such contest or dispute if Employee’s claim is upheld by a
court of competent jurisdiction; Employee shall indemnify Grand, on a current
basis, for all reasonable legal fees and expenses incurred by Grand in
connection with such contest or dispute if the court issues a final and
non-appealable order setting forth the determination that the position taken
by
Employee was frivolous or advanced by Employee in bad faith.
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the day and
year
first above written.
|
GRAND
TOYS INTERNATIONAL LIMITED
|
||
| |
|
|
| By: | /s/ Xxxx Xxxxx | |
|
Name: Xxxx
Xxxxx
Title: Chief
Executive Officer
|
||
| /s/ Xxxxx X.X. Xxxxxx | ||
|
Xxxxx
X.X. Xxxxxx
|
||
12
