Exhibit 10.1
Dated the 28th day of October 0000
XXXXX MEDIA GROUP CORPORATION
and
CON UNERKOV
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EMPLOYMENT AGREEMENT
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THIS AGREEMENT is made the 28th day of October 2005
BETWEEN
(1) CHINA MEDIA GROUP CORPORATION, a company incorporated in Texas, USA with its
registered office at 000 X. Xxxxxxxx Xxx Road, Suite 346, 186 Cedar Hill, Texas,
USA 75104 ("Company"); and
(2) CON UNERKOV of 00X, Xxxxx 0, Xxxxxxx Xxxxxx, 000 Xxxxx Xxxx Xxxx, Xxxx Xxxx
("Executive").
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 Executive and the Executive
agrees to serve the Company as Chairman and President by providing
the Company with the services hereinafter described.
B. In this Agreement, unless the context otherwise requires: -
(1) the following words and expressions bear the following meanings:
"Appointment" the appointment of the Executive as a Chairman and
President of the Company as effected by Clause 2;
"Associate" "associate" within the meaning under the Rules
Governing the Listing of Securities on The Stock
Exchange of Hong Kong Limited (as amended);
"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 from time to time by the
Group or any of the companies within the Group;
"Group" the Company, its subsidiaries and associated
companies from time to time; and
"$" United States dollars.
(2) Words and phrases defined in Section 2 of the Companies Ordinance shall
where the context so admits be construed as having the same meaning in
this Agreement.
(3) References to Clauses are references to the clauses of this Agreement
respectively.
(4) Words importing the masculine gender include the feminine gender and the
neuter gender and vice versa.
(5) Words importing persons include individuals, firms, companies,
corporations and un-incorporated bodies of persons and vice versa.
(6) Words importing the singular include the plural and vice versa.
(7) The headings in this Agreement are for convenience only and do not affect
the interpretation hereof.
2. Appointment and Duties
The Company shall employ the Executive and the Executive shall serve the
Company as Chairman and President subject to and upon the terms hereafter set
out.
3. Executive's Basic Obligation
The Executive hereby undertakes with the Company during the currency 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 11, the Appointment shall be for a term of two years
commencing on 1st October 2005 and shall continue thereafter unless and until
terminated by either the Company or the Executive giving to the other not less
than three month's notice in writing to determine the same.
5. Executive's Services
(A) The Executive shall: -
(1) devote the whole or substantially the whole of his time,
attention and skill to the discharge of duties of his office
as a managing director 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; and
(5) at all times keep the Board promptly and fully informed in
connection with the performance of such powers and duties.
(B) The Executive shall be required to work at the principal
place of business of the Company in Hong Kong or such
location as the Board may from time to time direct and
the Executive shall be required to travel and work
outside Hong Kong as directed by the Board from time to
time.
6. Remuneration and Reimbursement
(A) In consideration of the Appointment, the Executive shall receive
during the continuance of the Appointment: -
(1) a monthly salary ("salary") at the rate to be agreed by the parties
from time to time, which shall accrue on a day to day basis from any
company in the Group and payable in arrears on the last day of each
calendar month. In the event that the Appointment is terminated
prior to the end of a calendar month the Executive shall only be
entitled to a proportionate part of the salary in respect of the
period of service during the relevant month up to the date of
termination. The salary shall be increased at such rate to be
determined from time to time by the Board by a majority in number of
the members of the Board provided that the Executive shall abstain
from voting and not be counted in the quorum in respect of the
resolution regarding the increase of the salary in relation to the
Executive; and
(2) an annual management bonus ("Management bonus") of a sum calculated
on a day to day basis and to be determined by the Board at its
absolute discretion having regard to the operating results of the
Group and the performance of the Executive provided that the
aggregate sum payable to the directors of the Company shall not
exceed 8.8 percent of the consolidated net profits after taxation
and minority interest of the Company for that year. The management
bonus shall be payable in respect of each relevant financial year
within 1 month after the issue of the consolidated audited accounts
of the Group for such financial year. The amount of management bonus
payable to the Executive shall be decided by a majority in number of
the members of the Board provided that the interested director shall
abstain from voting and not be counted in the quorum in respect of
the resolution regarding the amount so payable to the Executive.
7. Holidays and Holiday Warrant (Leave Passage)
(A) The Executive shall (in addition to normal public holidays and
sick leave) be entitled to 4 weeks holiday in each period of
12 calendar months during the continuance of the Appointment
to be taken at such time or times as the Board may approve.
(B) Any holidays if not taken during the relevant year, and with
the approval of the Board, may be carried forward to a
subsequent year and the holiday entitlements for that
subsequent year shall be deemed to be increased by the number
of days so carried forward.
8. Payments
(A) The Executive shall continue to receive his salary during any period(s) of
absence on medical ground up to a maximum of 12 weeks in any period of 12 months
Provided that the Executive shall if required supply the Company with medical
certificates covering the period of absence.
(B) Payment of the salary and management bonus referred to in Clause 6 above to
the Executive shall be made either by the Company or by another company in the
Group and if by more than one company in such proportion as the Board may from
time to time think fit.
(C) The Executive shall be reimbursed all reasonable out-of-pocket expenses
(including expenses of entertainment subsistence and traveling) incurred by the
Executive on the Business which expenses shall be evidenced in such manner as
the Board may require.
9. Provident Fund
The Executive will during his employment under this agreement become a
member to any provident fund ("Fund") set up and maintained by the Group from
time to time and the Company shall promptly pay all contributions due under the
Fund. The period of the Executive's Appointment under the Agreement shall be
deemed to be employment with the Company for the purpose of determining the
benefit to accrue to the Executive under the Fund and for any other entitlement
of the Executive to employment related benefits whether statutory or otherwise,
including but not limited to long service award.
10. Share Option Scheme
The Executive shall be entitled to participate in any share option scheme
as may be maintained by the Group from time to time.
11. 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 Executive shall be entitled to terminate the Appointment by
three months' notice in writing to the Company if any money due and
payable by the Company to the Executive under or pursuant to this
Agreement in arrears by three months and is not paid in full by the
Company to the Executive within a period of thirty days from any
written demand by the Executive for the payment thereof;
(2) the Company shall be entitled to terminate the Appointment without
any compensation to the Executive: -
(i) by not less than three months' notice in writing given at any
time if the Executive shall have been incapacitated or
prevented by reason of ill health, injury or accident from
performing his duties hereunder for a single period of 12
weeks or periods aggregating 180 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 Executive
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
(ii) by summary notice in writing if the Executive shall at any
time: -
(aa) commit any serious or persistent breach of any of the
provisions herein contained (and to the extent that such
breach is capable of remedy shall fail to remedy such
breach within 30 days after written warning given by the
Board);
(bb) be guilty of any grave misconduct or willful default or
neglect in the discharge of his duties hereunder (and to
the extend that such breach is capable of remedy shall
fail to remedy such breach within 30 days after written
warning given by the Board);
(cc) become bankrupt or have a receiving order made against
him or suspend payment of his debts or compound with his
creditors generally;
(dd) become a lunatic or of unsound mind;
(ee) absent himself from the meetings of the Board during a
continuous period of three 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;
(ff) become prohibited by law from acting as a Executive;
(gg) be guilty of conduct tending to bring himself or any
company in the Group into disrepute;
(hh) be prohibited by law from fulfilling his duties
hereunder; or
(ii) 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).
(B) If the Company becomes entitled pursuant to Clause 11(A)(2)(ii) above to
terminate the Appointment 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 Executive without payment of salary in full or in part for so
long as it may think fit.
(C) If the Executive 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, by a
person or company which has either 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 Executive shall have no claim against the
Company by reason of the subsequent voluntary winding up of any company in the
Group or of the disclaimer or termination of this Agreement by the Company
within three months after such refusal or failure to agree.
(D) On the termination of the Appointment howsoever arising the Executive
shall: -
(1) at any time and from time to time hereafter at the request of
the Company resign from office as a Executive 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 or any
shares held by the Executive as nominee for the Company or any
company in the Group and the Executive 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 for
the time being 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 Executive may have against
any such company or which any such company may have against
the Executive arising out of this Agreement or of the
termination of the Appointment; and
(2) forthwith deliver to the Company all books, documents, papers,
materials, credit cards (if any) 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.
(E) Save as expressly provided herein, neither party may terminate this
Agreement.
12. Restrictions on the Executive
(A) During the Appointment the Executive shall not, and shall procure
that none of his Associates shall, 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 unless
otherwise approved by the Board Provided that this shall not
prohibit the holding (directly or through nominees) of investments
listed on any stock exchange as long as not more than 5% of the
issued shares or stock of any class of any one company shall be so
held save that this restriction shall not apply to any holding of
shares or stock of the Company.
(B) The Executive shall not either during or after the termination of
the Appointment without limit in point of time except authorized or
required by his duties: -
(2) divulge or communicate to any person except to those of
the officials of the Group whose province it is to know
the same; or
(3) use for his own purpose or for any purpose other than
that of the Group; or
(4) through any failure to exercise all due care and
diligence cause any unauthorized disclosure of, any
secret confidential or private information: -
(i) relating to the dealings, organization, business, finance,
transactions or any other affairs of the Group or its clients
or customers; or
(ii) 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 the Appointment; or
(iii) 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 (otherwise than through the default of the Executive) become
available to the public generally without requiring a significant expenditure of
labour, skill or money.
(C) Subject to the exception provided under Clause 12(A), for a period of 1 year
after the expiry or the termination of the Appointment, the Executive, will not
and will procure that his Associates do not: -
(1) engage or be engaged in Hong Kong, the People's Republic of China,
or elsewhere whether directly or indirectly in any business which is
in competition with or similar the Business;
(2) take up employment with any person, firm, company or organization
engaged in Hong Kong, the People's Republic of China or elsewhere,
whether directly or indirectly, in or operating any part of the
Business (but this restriction shall not operate so as to prohibit
an employment none of the duties of which relate to the Business) or
assist any such person, firm, company or organization with
technical, commercial or professional advice in relation the
Business;
(3) either on his own account or for any person, firm, company or
organization solicit or entice or endeavor to solicit or entice away
from any company within the Group any director, manger 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;
(4) 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 Executive would be covered
by the confidentiality restrictions of this Clause 12; and
(5) 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 during 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 negotiation with the Company or any such company in the
Group in relation the Business.
(D) The Executive shall not at any time make any untrue or
misleading statement in relation the Group.
(E) Since the Executive 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
Executive 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.
(F) All notes memoranda records and writings made by the Executive
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 Executive shall not retain any
copy thereof.
(G) The covenants in each paragraph of sub-clause (C) are
independent of each other and are not to be construed
restrictively by reference to one another.
(H) 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.
13. Inventions and Other Industrial or Intellectual Property
(A) The parties foresee that the Executive may make inventions or create other
industrial or intellectual property in the course of his duties hereunder and
agree that in this respect the Executive has a special responsibility to further
the interests of the Group.
(B) Any invention or improvement or design made or process or information
discovered or copyright work or trade xxxx or trade name or get-up relating to
the Business created by the Executive during the continuance of the Appointment
(whether capable of being patented or registered or not and whether or not made
or discovered in the course of his Appointment) in conjunction with or in any
way affecting or relating to the Business or capable of being used or adapted
for use therein or in connection therewith shall (unless such invention or
improvement or design was made or process or information discovered or copyright
work or trade name or get-up were in existence prior to the commencement of a
similar business by any company in the Group) forthwith be disclosed to the
Company and shall belong to and be the absolute property of such company in the
Group as the Company may direct.
(C) The Executive shall subject to Clause 14(B) above, if and whenever required
so to do by the Company at the expense of a company in the Group apply or join
with such company in applying for letters patent or other protection or
registration for any such invention improvement design process information work
trade xxxx trade name or get-up relating to the Business as aforesaid which
belongs to such company and shall at the expense of such company execute and do
all instruments and things necessary for vesting the said letters patent or
other protection or registration when obtained and all right title and interest
to and in the same in such company absolutely and as sole beneficial owner or in
such other person as the Company may specify.
(D) The Executive hereby irrevocably appoints the Company to be his Attorney in
his name and on his behalf to execute and do any such instrument or thing and
generally to use his name for the purpose of giving to the Company the full
benefit of this Clause and a certificate in writing signed by any director or by
the secretary for the time being 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.
14. Waiver
(A) Time is of 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.
15. Former Service Agreement
(A) This Agreement shall supersede all and any previous agreements entered into
between any company in the Group and the Executive and for any terms of
employment previously in force between any such company and the Executive,
whether or not on a legal or formal basis.
(B) The Executive hereby acknowledges that he has no claim of any kind against
any company in the Group and without prejudice to the generality of the
foregoing he further acknowledges that he has no claim for damages against any
company in the Group for the termination of any previous service agreements for
the purpose of entering into this Agreement.
16. Notices
All notices, requests, demands, consents or other communication 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: -
(1) in the case of a communication by letter 10 days (if overseas) or 48
hours (if local) after dispatch or, if such letter is delivered by
hand, on the day of delivery; or
(2) in the case of a communication by telex or facsimile, when sent
provided that the transmission is confirmed by the answer back of
the recipient (in the case of telex) or by a transmission report (in
the case of facsimile).
The Company's address: 000 X. Xxxxxxxx Xxx Road
Suit 000
000 Xxxxx Xxxx
Xxxxx, 00000
XXX
The Executive's address: 12F Block B
Elegant Garden
419 Queen's Road West HK
17. Assignability
This Agreement shall be binding upon and ensure to the benefit of each
party hereto and its successors and assigns and personal representatives (as the
case may be), provided always that the Executive may not assign his obligations
and liabilities under this Agreement without the prior written consent of the
Company.
18. Relationship
None of the provisions of this Agreement shall be deemed to constitute a
partnership or joint venture between the parties for any purpose.
19. 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.
20. 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 extend 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
extend permitted by such law to the end that this Agreement shall be a valid and
binding agreement enforceable in accordance with its terms.
21. Law and Jurisdiction
This Agreement shall be governed by and construed in all respects in
accordance with the laws of Hong Kong Special Administrative Region and the
parties hereby submit to the non-exclusive jurisdiction of the courts of Hong
Kong Special Administrative Region.
IN WITNESS whereof this Agreement has been duly executed the day and year first
above written.
SIGNED by )
)
for and on behalf of ) /s/ Xxxx Xx
CHINA MEDIA GROUP CORPORATION ) Director
in the presence of: - )
SIGNED by )
) /s/ Con Unerkov
CON UNERKOV )
in the presence of: - )
