EXHIBIT 4.4
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT (this "Agreement") dated as of the 21st day of
December 2002 between Novel Denim Holdings Limited, a British Virgin Islands
Corporation (the "Company"), and Xxxxxx Xxxx ("Executive").
WHEREAS, the parties desire to enter this Agreement to reflect their
mutual agreements with respect to the employment of Executive as Senior Vice
President of the Company and Director of Sales and Marketing of its affiliates
engaged in garments manufacturing and trading;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
1. Term. The employment of Executive under this Agreement shall
commence on 1* January 2003 and shall continue through 31st March 2004 (the
"Initial Term"), subject to the terms and provisions of this Agreement. After
the expiration of the Initial Term, this Agreement shall be automatically
renewed for additional one-year terms unless either the Company or Executive
gives written notice to the other of the termination of this Agreement at least
three months in advance of the next successive one-year term. Any election by
the Company or Executive not to renew such employment at the end of the Initial
Term or any renewal term shall be at the sole, absolute discretion of the
Company or Executive, respectively.
2. Positions and Duties. Executive shall be employed as Senior
Vice President of the Company and Director of Sales and Marketing of its
affiliates engaged in garments manufacturing and trading. Executive's authority
and responsibilities shall be defined by the Board of Directors of the Company,
which shall be those customarily assigned to executives in similar positions.
Executive shall report to the Company's Board of Directors, Executive shall
devote his full time for the fulfillment of his job responsibilities to the
Company or its affiliates. Executive shall have his principal office based in
Hong Kong during his employment with the Company.
3. Compensation.
(a) Base Salary. The Company shall pay Executive a base salary
(the "Base Salary") at an annual rate of US$150,000.00. The Base Salary shall be
payable in installments in accordance with the Company's policies and
procedures.
(b) Discretionary Bonus. Executive shall be entitled to
participate in the Company's discretionary bonus plan which shall be determined
depending on Executive's performance as well as the Company's business
profitability.
(c) Annual Leave. Executive shall be entitled to two weeks annual
leave (inclusive of two Saturdays and two Sundays) after completion of twelve
months' service. Annual leave must be taken in the year during which it is
earned with a portion to be taken compulsorily with Chinese New Year holidays.
No balance can be carried forward to subsequent years unless prior written
consent from the Executive's direct supervisor.
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(d) Medical and Insurance Scheme. Executive shall be entitled to
join the Company's medical scheme which coverage is subject to the terms and
conditions of the policy issued to the policyholder.
(e) Expense Reimbursement. The Company shall reimburse Executive
for the ordinary and necessary business expenses incurred by him in the
performance of his duties in accordance with the Company's policies and
procedures.
(f) Stock Options. Executive shall be entitled to participate in
the employee stock option plan adopted by the Company.
4. Termination of Employment.
(a) Death and Disability. Executive's employment under this
Agreement shall terminate automatically upon his death. The Company may
terminate Executive's employment under this Agreement if Executive is absent
from work due to illness or incapacity for a period of at least 90 days (whether
or not consecutive) in any period of 365 consecutive days.
(b) Cause. The Company may terminate Executive's employment under
this Agreement at any time with Cause (as defined below). For purposes of this
Agreement, "Cause" means: (i) a material breach by Executive of his obligations
under this Agreement which is specified in reasonable detail in a written notice
to Executive and which Executive has not either remedied within 30 days after
the receipt of such notice or commenced to remedy within 30 days after the
receipt of such notice and continued to pursue such remedy diligently in good
faith; (ii) in subordination or a refusal by Executive to perform his duties
under this Agreement; (iii) the commission by Executive of a fraud or theft
against the Company or Executive's conviction for aiding or abetting, or the
commission of, a felony or of a fraud or a crime involving moral turpitude or a
business crime; (iv) a filing of a petition or other declaration of personal
bankruptcy by or against Executive; or (v) the possession or use by Executive of
alcoholic beverages on a recurring basis which impairs Executive's ability to
perform his duties under this Agreement, or the appearance during hours of
employment on a recurring basis of being the influence of such drugs, substances
or alcohol.
5. Consequences of Termination or Breach.
(a) Death or Disability: Termination for Cause or Without Good
Reason. If Executive's employment under this Agreement is terminated under
Section 4(a) or 4(b), or Executive terminates his employment for any reason
other than for "Good Reason" (as defined below), Executive shall not thereafter
be entitled to receive any compensation or benefits under this Agreement, other
than for Base Salary earned but not yet paid prior to the date of Executive's
termination of employment with the Company for any reason (the "Termination
Date") and reimbursement of any expenses pursuant to Section 3(e) incurred prior
to the Termination Date. For purposes of this Agreement, "Good Reason" means a
material breach by the Company of its obligations under this Agreement which is
specified in reasonable detail in a written notice to the Board of Directors of
the Company and which the Company has not either remedied within 30 days after
the receipt of such notice or commenced to remedy within 30 days after the
receipt of such notice and continued to pursue such remedy diligently in good
faith.
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(b) Other Terminations. If Executive's employment under this
Agreement is terminated by the Company other than under Section 4(a) or 4(b), or
Executive terminates his employment for Good Reason, the sole obligation of the
Company to Executive shall be to make the payments described in Section 5(a) and
to pay Executive as liquidated damages an amount equal to 50% of the then
current annual Base Salary, which amount shall be (i) payable in installments
over a six-month period in the manner prescribed in Section 3(a) and (ii) offset
by any compensation and benefits that Executive receives from other employment
during this period. Executive expressly agrees to use reasonable efforts to seek
other employment or otherwise mitigate any payments required to be made
hereunder by the Company. Executive acknowledges that and agrees that in the
event the Company terminates Executive's employment in breach of this Agreement,
Executive's sole remedy shall be to receive the payments specified in this
Section 5(b), and Executive hereby waives any other rights he may have against
the Company or any of its affiliates or any of their respective officers,
directors, stockholders, employees or agents for damages arising from such
termination.
6. Certain Covenants and Representations.
(a) Confidentiality. Executive acknowledges that he will acquire
Confidential Information (as defined below) with respect to the Company and its
affiliates and the business they conduct. In connection therewith, Executive
covenants to refrain from disclosing at any time (during his employment under
this Agreement or thereafter), any such Confidential Information, other than in
connection with the performance of his duties under this Agreement. Upon
termination of his employment hereunder, Executive agrees to return to the
Company all documents or recorded material of any type (including all copies
thereof) which may be in his possession or under his control which constitutes
or relates to Confidential Information. Executive's obligations under this
Section 6(a) shall survive the termination of this Agreement and the termination
of Executive's employment hereunder.
"Confidential Information" shall mean all confidential information with
respect to the Company and its affiliates and the business they conduct
including, without limitation, confidential information and trade secrets
concerning working methods, processes, business and other plans, programs,
designs, products, profit formulas, customer names, customer requirements and
supplier names. "Confidential Information" shall not include (i) information
generally known to the public and (ii) information properly received by
Executive outside of his employment under this Agreement and from any third
party not affiliated with the Company and not under any duty to the Company not
to disclose such information.
(b) Competitive Activity. During the term of his employment under
this Agreement and, if Executive terminates his employment (other than the
termination of employment at the end of the initial term or any renewal period
or for Good Reason), for six months after the Termination Date, Executive shall
not (except pursuant to Executive's activities with any affiliate of the
Company), without the prior written consent of the Broad of Directors of the
Company, directly or indirectly, engage or be interested in (as owner, partner,
shareholder, employee, director, officer, agent, consultant or otherwise), with
or without compensation, any business which engages in activities in competition
with the Company or any of its affiliates anywhere in the world where the
Company or any of its affiliates does business at any time during the term of
employment under this Agreement.
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(c) No Hiring. During the six months period immediately following
the Termination Date, Executive shall not employ or retain (or participate in or
arrange for the employment or retention of) any person who was employed or
retained by the Company or any of its affiliates within the six-month period
immediately preceding such employment or retention.
(d) Remedy for Breach and Modification. Executive acknowledges
that the foregoing provisions of this Section 6 are reasonable and necessary for
the protection of the Company and that the Company will be materially and
irrevocably damaged if these provisions are not specifically enforced.
Accordingly, Executive agrees that, in addition to any other relief or remedies
available to the Company, the Company shall be entitled to seek an appropriate
injunctive or other equitable remedy for the purposes of restraining Executive
from any actual or threatened breach of or otherwise enforcing these provisions
and no bond or security will be required in connection therewith, If any
provision of this Section 6 is deemed invalid or unenforceable, such provision
shall be deemed modified and limited to the extent necessary to make it valid
and enforceable.
7. Miscellaneous.
(a) Authority. The Company and Executive each have full power and
authority to execute and deliver this Agreement and to perform their respective
obligations hereunder. This Agreement constitutes the legal, valid and binding
obligation of the Company and Executive and is enforceable against the Company
and Executive in accordance with its terms.
(b) Notices. Any notice or other communication made or given in
connection with this Agreement shall be in writing and shall be deemed to have
been duly given when delivered by hand, by facsimile transmission, by
internationally recognized overnight delivery service or mailed by certified
mail, return receipt requested, to a party at his or its address set forth below
or at such other address as a party may specify by notice to the other:
To the Company:
Novel Denim Holdings Limited
X/x Xxxxxxxx X.X. Xxx
00/X, Xxxxx Xxxxxxxxxx Building,
850-870 Lai Xxx Xxx Road,
Xxxxxx Sha Wan, Kowloon, Hong Kong.
Fax Number: 000-0000-0000
To Executive:
00X, Xxxxx 0, Xxxxxx Xxxx,
Xxxx Xxxx, Xxxxxxx, Hong Kong,
Fax Number: 000-0000-0000
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(c) Waiver. The failure of any party to insist upon strict
adherence to any term or condition of this Agreement on any occasion shall not
be considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement. Any
waiver must be in writing.
(d) Assignment. Except as otherwise provided in this Section 7(d),
this Agreement shall inure to the benefit of and be binding upon the parties
hereto and their respective heirs, representatives, successors and assigns. This
Agreement shall not be assignable by Executive and shall be assignable, in whole
or in part, by the Company only to its affiliates; provided, that any assignment
by the Company shall not, without the written consent of Executive, relieve the
Company of its obligations hereunder.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be considered an original, but all of which
together shall constitute the same instrument,
(f) Captions. The captions in this Agreement are for convenience
of reference only and shall not be given any effect in the interpretation of the
Agreement.
(g) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Hong Kong Special Administrative
Region ("Hong Kong") and the parties hereto submit to the non-exclusive
jurisdiction of the Hong Kong Courts in the determination of any dispute arising
hereunder.
(h) Expenses. The Company shall reimburse Executive for the
reasonable fees and expenses of his legal counsel (if any) in connection with
the negotiation and execution of this Agreement.
(i) Legal Fees and Expenses. If any party to this Agreement brings
a claim against another party to enforce the terms hereof, the prevailing party
in respect of such claim shall be entitled to be paid the legal fees and
expenses incurred by such party in prosecuting such claim.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NOVEL DENIM HOLDINGS LIMITED
By: /s/ X. X. Xxxx
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Name: X. X. Xxxx
Title: Chief Executive Officer
/s/ [ILLEGIBLE]
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Executive
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